Judgment Braj Nandan Prasad Singh, J. 1. Facts which are not in dispute is commission of dacoity in the intervening nights of 26/27 November, 1997, in the house of Parmeshwar Mahto, and killing of two house inmates in the said transaction. Salient features of the prosecution case can, however, be noticed. 2. Prosecution was launched on behest of Parmeshwar Mahto with accusation that on the said night, unidentified miscreants, who were 20/25 in numbers holding firearms and iethal weapons having gained their access in inner apartment in his house assaulted house inmates, shot deed Bishundeo Mahto and Naresh Mahto, relieved female members of their ornaments and decamped with the booty which include ornaments, cash, wearing apparels, etc. As usual, investigation followed, in course of which Investigating Officer visited place of occurrence, recorded statement of witnesses, noticed dead bodies of Naresh Mahto and Bishundeo Mahto with copious blood at the place of occurrence, prepared inquest report over their dead bodies, got autopsy held by the doctor, seized empty shells of cartridges from the place of occurrence, got appellants and others remanded in Dalsinghsarai PS Case No. 190 of 1997, got test identification parade held, and on conclusion of investigation, laid charge-sheet before the Court. 3. At trial, State examined ten witnesses including house inmates, neighbours, doctor and also the Police Officer. 4. Two fold contentions were raised on behalf of the defence to counter accusations attributed to the appellants and first of them was that since appellants happened to be in custody in Dalsinghsarai P.S. case No. 194 of 1997, Police got them remanded in the instant case for no good reasons and simply to secure laurels. Other defence of the appellants was that though appellants were shown to have been identified by the witnesses during test identification parade, trial had vitiated, as suspects, appellants, were got identified by the witnesses on behest of police officer, preceding holding of test identification parade. Defence, however, had not chosen to examine witness to strengthen the argument that was canvassed on their behalf. The trial Court, however, on consideration of the probative value of the evidence of witnesses, while negativing plea of innocence of the appellants, recorded finding of guilt under Sec. 396 of the Indian Penal Code ( Indian Penal Code, 1860 ) and awarded capital punishment to them. 5. The trial Court, however, on consideration of the probative value of the evidence of witnesses, while negativing plea of innocence of the appellants, recorded finding of guilt under Sec. 396 of the Indian Penal Code ( Indian Penal Code, 1860 ) and awarded capital punishment to them. 5. Since narrations made by prosecution witnesses have been fairly spelt out in the judgment of the court below, we do not wish to discuss them in much details. However, we have noticed that among those who were examined by the State at trial, while Satish Kumar (PW 8) and Girish Kumar (PW 9) were house inmates, Birendra Mahto (PW 7) and Yogendra Mahto (PW 10) happen to be those persons who were residing in the neighbourhood and rushed to the house of Asharfi Mahto during, the incident. They also happen to be the persons who witnessed the incident and claimed to have identified the appellants. Part of the incident, that is reflected from narrations of these witnesses was that the miscreants had caused gun shot injury to Asharfi Mahto, Parmeshwar Mahto, and Ram Gulam Mahto and also shot dead Bishundeo Mahto and Naresh Mahto in course of dacoity, it was also stated by them that Ramgulam Mahto too succumbed to the injuries after 3/4 months of the incident in course of treatment. Attention of Satish Kumar (PW 8) and Yogendra Mahto (PW 10) had also been drawn to their earlier version rendered before the Police and it was sought to be shown that since these witnesses had not made parallel statement before the Police, they were not credible. However, we have noticed that even if these witnesses have not made parallel statements before police, that was not on material particulars of the case to impeach their credibility. 6. Dr. Anil Kumar (PW 4) who held autopsy over the dead body of Bishundeo Mahto had noticed gun shot injuries on chest and swellings on left parietal area, and as for Naresh Mahto, finding of the doctor was that there were two communicating lacerated wounds caused by projectile firearms. 7. 6. Dr. Anil Kumar (PW 4) who held autopsy over the dead body of Bishundeo Mahto had noticed gun shot injuries on chest and swellings on left parietal area, and as for Naresh Mahto, finding of the doctor was that there were two communicating lacerated wounds caused by projectile firearms. 7. It was Sarfuddin Khan (PW 5) who was the Investigating Officer and he stated that on tip off about commission of dacoity in village Bombeya Harlal, in which two house inmates were also killed, he rushed to village where he noticed dead bodies of Naresh Mahto and Bishundeo Mahto smeared with blood and with gun shot injuries on their persons. Fardbeyan of Parmeshwar Mahto was recorded there. Inquest report over the two dead bodies was also prepared and he also got test identification parade of the suspects held. As for objective finding, evidence of Police Officer is that he had found broken boxes and also empty shells of cartridges at the place of occurrence. Pramila Devi (PW 2) and Raj Kumari Devi (PW 3) were female house inmates who testified about commission of dacoity in their house in the night of incident, and miscreants relieving them of their ornaments. They, however, did not claim identification of the miscreants. Reiterating his earliest version, Parmeshwar Mahto (PW 1), testified about commission of dacoity in his house in the night of incident when not only other house inmates were assaulted by the miscreants but also Naresh Mahto and Bishundeo Mahto were also shot dead by them, who after accomplishment of dacoity had made good their escape with booty. 8. Shri Krishna Murari Saran, Judicial Officer, (PW 6) happens to be Judicial Officer who conducted test identification proceeding in jail premises of Samastipur Jail when both the appellants, namely, Ram Sagun Mahto and Raghunath Sahni, were identified by Birendra Mahto (PW 7) and Satish Kumar (PW 8). Identification of the appellants by these two witnesses was also sought to be established by the State with their identification in Court. Likewise, Ram Sagun Mahto was identified by Girish Kumar (PW 9) both during test identification parade and also in court and similar was the case with Raghunath Sahni also who was identified by Yogendra Mahto (PW 10) both during test identification parade and also in Court. 9. Now some of the arguments highlighted at Bar may be noticed. Likewise, Ram Sagun Mahto was identified by Girish Kumar (PW 9) both during test identification parade and also in court and similar was the case with Raghunath Sahni also who was identified by Yogendra Mahto (PW 10) both during test identification parade and also in Court. 9. Now some of the arguments highlighted at Bar may be noticed. Thrust of the argument of the learned counsel was that even though Asharfi Yadav too was shown to have sustained injuries during occurrence, he was withheld by the State for no good reason and hence adverse inference can be drawn that had he been examined at trial, he would not have lent assurance to the prosecution case about accusations against the appellants and yet it is urged that even though Pramila Devi (PW 2) and Raj Kumari Devi (PW 3) happen to be house inmates who had occasion to see the miscreants from close range, they had not claimed identification of any one of them and this fact was so galore that identification of the appellants by the rest witnesses would loose all its significance. 10. We are, however, unable to accept this submission for the simple reason that identification of a person would much depend on the optical potency of a person and also his capacity to retain an incident in the memory, and simply because Pramila Devi (PW 2) and Raj Kumari Devi (PW 3) did not claim identification of the appellants, significance of identification of the appellant by as many as three witnesses not only during test identification parade but also at trial cannot be minimised, and similar logic would apply in the case of non-examination of Asharfi Mahto also as what the court is required to do is to judge credibility of witnesses who were examined at trial and not to anticipate the probative value of evidence of a witness who was not examined. 11. Unable to find any meaningful criticism, arguments were made that since no source of identification was ever mentioned in the fardbeyan of Parmeshwar Mahto, which was the earliest version of the prosecution, narrations made by witnesses at trial about identification of the appellants either in the lantern or flash of torch light must be considered to be subsequent improvement of the prosecution version. We have given our due consideration on this score too and we find that while PW 7 and PW 10 stated identification of the appellants both in the lantern and flash of torch light during commission of dacoity, PWs 8 and 9 claimed their identification in the lantern that was burning in the house. Since it was night, existence - of a lantern in the house can be easily inferred, and that apart, regard being had to the identification of the appellants, not only during test identification parade but also in Court, even if there be omission of names in the first information report, that would not introduce any infirmity in the prosecution version about identification of the appellants. Other submission is that though witnesses during test identification parade stated identification of the appellants with overtacts, no such narrations were made at trial and hence recitals made in the test identification parade cannot be taken into consideration, that being not a substantive evidence. Had this been a case of only identification of the miscreants during test identification parade, that would have carried some significance, but as we have noticed that appellants were also identified in Court at trial. Omission to make such narration in their evidence would not impair their credibility about identification of the appellants. 12. With much stress it is argued that since no precaution was taken by the police officer for concealment of identity of the appellants pursuant to their apprehension, possibility of appellants getting identified by witnesses, preceding holding of test identification parade, cannot be ruled out and on this score we find that neither suggestions were given to the witnesses that the police officer got appellants identified by them preceding holding of test identification parade, nor witnesses otherwise had occasion to see them at any point of time preceding holding of test identification parade. Such excuse had not been taken by appellants even during their examination u/s. 313 of the Code of Criminal Procedure. That apart, considering evidence of judicial Magistrate who conducted test identification parade and also evidence of witnesses who participated in the test identification parade, we find that there was no evidence whatsoever also about violation of procedure for holding test identification parade to impute unfairness in the proceeding and to render the test identification proceeding invalid. That apart, considering evidence of judicial Magistrate who conducted test identification parade and also evidence of witnesses who participated in the test identification parade, we find that there was no evidence whatsoever also about violation of procedure for holding test identification parade to impute unfairness in the proceeding and to render the test identification proceeding invalid. If narration made by the witnesses was to be given any credence, operation of dacoity lasted for quite long time and hence identification of the appellants was not improbable. As has been evidence of Birendra Mahto (PW 7) the miscreants had apprehended him for some time and similar was the evidence of Satish Kumar (PW 8), Girish Kumar (PW 9) and Yogendra Mahto (PW 10), Girish Kumar (PW 9) also alleges assault on him by the miscreants and as has been evidence of Yogendra Mahto (PW 10), the miscreants had been wielding pistol on him and in backdrop of such situation identification of appellants by house inmates appears to be most probable who had occasion to see miscreants with close proximity. Though Birendra Mahto (PW 7) hails from village Masoorchak, as has been his evidence and also that of other witnesses, he was residing in village Bombeya Harlal for last 18 years and that too in the neighbourhood of Parmeshwar Mahto and in that view of the matter too, possibility of his witnessing the incident appears to be most probable. 13. Occurrence took place in the intervening nights of 26/27th November, 1997, pursuant to which appellants were remanded in Dalsinghsarai PS Case No. 190 of 1997 on 2nd January, 1998 and evidences on record do suggest that test identification parade of the appellants along with others was held in jail premises on 7th January, 1998 and for belated test identification parade of the appellants, submission is that the witnesses were not expected to have retained physical feature of the miscreants in their memory for such a long period, and on that count too, identification of the appellants was meaningless. True it is that if test identification parade is held earlier, it inspires some faith but as has been held by the Courts time without numbers that if crime itself is such that it would create a deep impression on mind of the witnesses, who had occasion to see the culprits, identification by them even belatedly cannot be disbelieved. True it is that if test identification parade is held earlier, it inspires some faith but as has been held by the Courts time without numbers that if crime itself is such that it would create a deep impression on mind of the witnesses, who had occasion to see the culprits, identification by them even belatedly cannot be disbelieved. We may refer to some of the decisions of the Apex Court. In Brij Mohan and Ors. V/s. State of Rajasthan, reported in (1994) 1 SCC 413 . It was held by the Apex Court that deep impression would not be erased within a period of three months. In case of Daya Singh V/s. State of Haryana, reported in (2001) 3 SCC 468 , even though test identification parade was held after eight years of the commission of incident and six months of arrest of the miscreants, witnesses were found reliable, as witnesses had lost their family members by killing by the miscreants, during the incident, hence court was of the view that there were good reasons of impression of identity on the mind and memory of the witnesses. We would also refer to a recent decision of the Apex Court of the land in Anil Kumar V/s. State of U.P., reported in (2003) 3 SCC 569 in which even though test identification parade was held after 47 days of the occurrence, in the facts and circumstances of the case, witnesses were considered reliable by the Court. 14. Coming to the case under consideration, we find that the miscreants had taken the witnesses in their custody and also had shot dead two of the house inmates. These are the considerations, which would impress upon the mind of the witnesses facilitating their identification, even after lapse of 42 days. Referring to the evidence of test identification chart, learned counsel would submit that since Girish Kumar (PW 9) had committed mistake in identification of one Shatrughan Mahto also, who was not suggested to be miscreants who participated in the incident, commission of such error in case of others also would not be ruled out. Referring to the evidence of test identification chart, learned counsel would submit that since Girish Kumar (PW 9) had committed mistake in identification of one Shatrughan Mahto also, who was not suggested to be miscreants who participated in the incident, commission of such error in case of others also would not be ruled out. However, we may say that though human memory is not infalliable, as error cannot be ruled out, had it been a case of single identification, the matter would have been otherwise, but contrary to that, there has been evidence of identification of both the appellants by not less than three witnesses, and in that view of the matter, possibility of commission of error in their identification by them appears to be extremely bleak. 15. Now coming to the magnitude of sentence imposed on the appellants, principle of exercising discretion for imposing death sentence are that sentence of death is awarded in cases in which act is very brutal and highly repugnant in moral. Question to be answered in this circumstance is as to whether there are aggravating circumstances which impertinently call for extreme penalty and also as to whether the incident was rarest of the rare cases. It seems that the court below too had taken into consideration the principles laid down by the Apex Court, but having been obsessed with the view that the appellants were menace to the society, awarded death sentence to them. However, it is not necessary for us to delve into further, for law on the subject has been well crystallized by plethora of decisions on this subject, and in the circumstances while upholding finding of guilt recorded against the appellants, we alter the sentence of the appellants to rigorous imprisonment for life and with this modification in sentence, the appeal is dismissed and death reference too made to this Court under sec. 366 of the Code of Criminal Procedure is answered in the aforesaid terms. Sachchidanand Jha, J. 16 I agree.