Judgment KHEM CHAND SHARMA, J. ( 1 ) SINCE all the three above titled appeals arise out of the judgment and order dated 25/2/1984 in sessions case No. 13/81, they are being decided by this common judgment. ( 2 ) ON 17-6-1980, PW 3 Babulal lodged a written report, Ex. P6 at Police station, Bassi alleging therein that on the previous night at about 8-9 PM, 8-10 dacoits wearing khakhi dresses, duly armed with guns enters his house and gave beating to PW 1 Damodar. They broke open the locks of the shops and opened fire, the pellets of which hit one pokhar Balai of village Badawa. It was alleged that the dacoits broke open the lock of his room and after breaking iron safe looted gold and silver ornaments and he would submit the list of looted property. Lastly it was alleged that dacoits also broke opened the lock of the room of damodar and took away watch etc. ( 3 ) ON the basis of aforesaid written report, the Police registered a case for offence under Sections 395, 397 and 307 IPC vide FIR Ex. P29 and proceeded with the investigation. In the course of investigation, the police prepared site plan, Ex. P. 8, arrested the accused, got conducted identification parade, recovered the looted property on the information and at the instance of the accused and having completed investigation, police submitted a charge sheet against the accused in the court of learned Judicial magistrate Dausa. The learned Magistrate having found the offence exclusively triable by the court of Sessions, committed the case to the court of Sessions. The learned trial Judge, on the basis of evidence and material on record framed the charge under Sec. 395 and 412 IPC, to which the accused pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 25 witnesses and got exhibited certain documents. Thereafter the accused were examined under Section 313 Cr. P. C. In their explanation, the accused denied the prosecution allegations and offered their explanation. Some of the accused also got examined some witnesses in their defence. In support of its case, the prosecution examined as many as 25 witnesses and got exhibited certain documents. Thereafter the accused were examined under Section 313 Cr. P. C. In their explanation, the accused denied the prosecution allegations and offered their explanation. Some of the accused also got examined some witnesses in their defence. ( 4 ) AT the conclusion of trial, the learned trial Judge convicted all the accused under Sec. 395 IPC except accused ramanand who has been convicted for offence under Section 412 IPC, and sentenced them to 5 years rigorous imprisonment with a fine of Rs. 2000/-, in default thereof to further undergo rigorous imprisonment for one year. ( 5 ) AT the very out set it may be stated that in all four appeals were filed against the impugned judgment. The fourth appeal bearing No. 150/84 already stood disposed of as having become abated on account of death of appellant heeralal, vide order dated 2-4-2004. During pendency of these three appeals, appellants Moolya, Dulya and Mohan Lal have also expired and since no application within the stipulated period was filed on behalf of deceased appellants to prosecute the appeals, their appeals also stands abated. Now remains only five appellants, namely, Narayan, Laxman singh S/o Dilip Singh, Laxman Singh s/o Nand Singh, Balbir and Ramanand, whose conviction is under challenge. ( 6 ) I have heard learned counsel for the parties and have gone through the impugned judgment and the evidence and material on record. ( 7 ) ON going through the impugned judgment it appears that the learned trial court has convicted appellants Narayan, laxman Singh S/o Dilip Singh, Laxman singh S/o Nand Singh and Balbir on the basis of their identification. The trial court concluded that the prosecution witnesses have correctly identified these appellants as miscrients who committed dacoity. PW 7 Anil Kumar Mishra conducted identification parade of Laxman singh S/o Dilip Singh and Balbir, vide identification memo Ex. P4 and four witnesses, namely Bhagwan Sahai, Smt. Chand Bai, Kajodmal and Damodar Prasad were called for their identification. PW 19 Rakesh Kumar Mathur and PW 6 Brij mohan Chauhan conducted identification parade of appellants Narayan and Laxman singh S/o Nand Singh, respectively vide identifications memos Ex. P2 and P3. In addition to the four witnesses named above, Babulal, Ramdayal and Rameshwar were also called for identification of these appellants. PW 19 Rakesh Kumar Mathur and PW 6 Brij mohan Chauhan conducted identification parade of appellants Narayan and Laxman singh S/o Nand Singh, respectively vide identifications memos Ex. P2 and P3. In addition to the four witnesses named above, Babulal, Ramdayal and Rameshwar were also called for identification of these appellants. To judge the finding arrived at by the trial court in respect of identification of these four appellants, 1 deem it appropriate to have re-appraisal of the evidence. ( 8 ) PW 18 Bhagwan Sahai in his cross examination has admitted that because of night he could not identify any person at the time of incident. He further clarified that even today he is not in a position to identify them. PW 11 chand Bai also could not identify any accused in the court. However, she was not declared hostile. Similarly, PW 9 kojod, though had identified accused laxman Singh S/o Dilip Singh in the test identification parade, also could not identify any accused in the court. PW 1 damodar Prasad only identified all the accused persons in the court as well as in the test identification parade. However, though this witness in his statement has admitted the fact of there being darkness at the place and time of incident, but has tried to explain that in the light of lantern he could identify the accused persons. PW 2 Ramdayal has identified all the appellants in the court but he could identify only appellant narayan in the identification parade. PW 3 Babulal, author of report, Ex. P6 could not identify any of the accused appellants in the court and that being so, he was declared hostile. The prosecution has failed to examine one Rameshwar who alleged to have witnessed the occurrence. It appears that other eyewitnesses, namely Kanhaiyalal, Gyarsilal, injured Pokhar and Kirshna were not called for identification of the present accused appellants in the test identification parade but the prosecution examined them as PWs 8, 10, 12 and 16, respectively. However, these four eyewitnesses could not identify the accused appellants in the court. It appears that other eyewitnesses, namely Kanhaiyalal, Gyarsilal, injured Pokhar and Kirshna were not called for identification of the present accused appellants in the test identification parade but the prosecution examined them as PWs 8, 10, 12 and 16, respectively. However, these four eyewitnesses could not identify the accused appellants in the court. In this view of the matter, the net result of the evidence discussed herein above would be, that PW 1 Damodar was successful in identifying all the appellants at both the places i. e. in the court and in the test identification parade, while PW 2 Ramdayal identified all the accused in the court, but identified only Narayan in the test identification parade. Hence, none of the eyewitnesses, except PW 1 Damodar and PW 2 Ramdayal, could be able to identify any of the appellants in the court. ( 9 ) IN the above scenario, the question which emerges for consideration is as to what is the evidentiary value of the above two witnesses. Before adverting to the above question, some legal propositions relating to identification of the appellants need to be taken note of: (a) The evidence of test identification is admissible under sec. 9 of the Evidence Act: It is, at best, supporting evidence. In can be used only to corroborate the substantive evidence by the witnesses in the court regarding identification of the accused as the doer of criminal act. The earlier identification made by the witnesses at the test identification parade by itself has no evidentiary value. Reference may be made to a decision of the Apex Court in Sam-pattatyada Shinde v. State of maharashtra. (b) Identification tests do not constitute substantive evidence. Such tests are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. Reference in this connection may also be made to a decision of the Supreme Court in Motru v. State ofu. P. 2 (c) It is true that the test identification parade is a step in investigation, but it is the identification in the court that is an evidence. Reference in this connection may also be made to a decision of the Supreme Court in Motru v. State ofu. P. 2 (c) It is true that the test identification parade is a step in investigation, but it is the identification in the court that is an evidence. Reference is made to Girja Shankar Misra v. State of U. P. ( 10 ) HAVING found the legal proposition in sub paras (a) (b) and (c), what is now required is to scrutinize the evidence so as to find out the evidentiary value of the testimony of witnesses who identified the accused appellants in the court as well as at the test identification parade. In my considered view the evidence of identification of the accused appellants, put forth by the prosecution and relied upon by the trial court is highly unreliable and not worthy of credence for the following reasons : (1) The factum of source of light at the place of incident which enabled the witnesses to identify the accused appellants assumes great importance. It is an admitted fact that incident occurred at night in the darkness. PW 1 Damodar, PW 2 Ramdayal, PW 3 Babulal and PW 8 Kanhaiyalal have deposed that a lantern was hanging on the wall of the shop belonging to damodar Prasad. However, PW 3 babulal did not mention this fact in the written report, Ex. P6. PW 2 ramdayal in his statement (Ex. D2)under Sec. 161 Cr. P. C. also did not mention the above fact. That apart, this fact also does not find mention in the site plan, Ex. P. 8. PW 25 Leela ram who inspected the site specifically deposed that he did not see any lantern, although PW 3 Babulal had stated that when police came, lantern was hanging on the wall. Be that as it may, no blackening of wall was noted in the site plan, Ex. P8. Therefore, it is highly doubtful that any such lantern was the source of light at the time and place of incident so as to enable the witness to identify the accused appellants. Reference may be made to a decision of this court in Hari Singh and others v. The State of Rajasthan , wherein this court, in somewhat similar circumstances, observed as under :". . . . . . Reference may be made to a decision of this court in Hari Singh and others v. The State of Rajasthan , wherein this court, in somewhat similar circumstances, observed as under :". . . . . . If the kerosene lamp would have been there, then it would have caught the eye of the Investigating officer and he would have noted it in the site plan (Ex. P. 6) prepared by him. But again, there is no mention in Ex. P6 of any kerosene lamp. Therefore, the story of kerosene lamp appears to have been introduced later on during the course of statements of the witnesses, and its existence appears to be an improvement in the case of the prosecution. "reference may also be made to the following observations of the Apex Court in state of M. P. v. Ghudan:"if really there was a tube-light by which PW 26 identified the respondent, then the investigating agency would certainly have shown the existence of a tubelight and its placement in the sketch because it was a very important fact mainly because the identification of the accused is a vital factor to be proved by the prosecution. The benefit of the omission to point out the existence of such light in the sketch, in our opinion, should go to the accused. " (2) PW 3 Babulal has admitted in cross examination that before identification parade was held at Jail premises, they were permitted to see the accused at the police station. Similar is the statement of PW 12 pokhar who has deposed that he himself, Babulal, Damodar and mother of Babulal had seen the dacoits at the police station. (3) PW 2 Ramdayal has admitted in his statement that marriage of niece of narayan was solemnized in their village about 10-15 years prior to the incident. PW 3 Babulal has also admitted that accused Dulya (since deceased), accused Moolya (since deceased) and appellant Narayan had relationship in their village and for that reason he knew them. Surprisingly enough, their names did not find place in the FIR. (4) The report, Ex. P. 6 does not contain the description i. e. the age, height and other features of the dacoits. Surprisingly enough, their names did not find place in the FIR. (4) The report, Ex. P. 6 does not contain the description i. e. the age, height and other features of the dacoits. (5) It is an admitted case of the prosecution that Laxman S/o Dilip singh, Laxman S/o Nandu and balbir were confined in sub Jail, dausa from where the Investigating officer of the case took them in custody on 15-12-1980, 15-12-1980 and 13-12-1981 vide their arrest memos exs. P33, 34 and 36 respectively. Their identification was held on 11-10-1980, 11-7-1980 and 11-10-1980 i. e. prior to their arrest in the case. In this view of the matter, the procedure so adopted by the prosecuting agency can hardly be said to be in accordance with law. Reference may be made to a decision of this court in Ramswaroop and Hari Singh v. State of Rajasthan, wherein this court held as under :"identification is a very weak type of evidence, and the manner in which the identification proceedings were conducted in this case can hardly inspire any confidence of the court. The accused persons are already in judicial custody in some other case in which the police holding that no charge has been found to have been proved against the accused persons. While the accused were in judicial custody, the identification is alleged to have taken place on 12-1-1975, while they were arrested in connection with this case on 10-2-1975. The procedure so adopted by the prosecuting agency can hardly be said to be in accordance with law". (6) The identification of accused appellants by Damodar and Ramdayal is not reliable for the reason mentioned herein above and specially in the background that similarly situated witnesses failed to identify them. In this connection, reference of a decision of the Apex Court in state of M. P. v. Ghudan (supra) also need be mentioned, wherein the apex Court while dealing with serious discrepancies concerning test identification parade held:"for the above reason, we are in agreement with the high Court that the identification of the respondent by PW 26 is not reliable especially in the background of the fact that a similarly situated witness like PW 11 had failed to identify this respondent. " ( 11 ) FOR the reasons aforesaid, it must be concluded that the learned trial court has failed to notice the above important aspects, which certainly go to the root of the matter and having ignored the above features, the trial Judge has relied upon the evidence of identification of the accused appellants and has based conviction. In this view of the matter, I have no hesitation in holding that the trial Judge has committed serious error in convicting the accused appellants while relying upon the evidence of test identification parade. ( 12 ) THE learned trial Judge has also believed the evidence of recovery of looted property. On a close look at the record i do not find any evidence of recovery against three appellants namely Laxman singh S/o Dilip Singh, Laxman Singh s/o Nand Singh and Balbir. So far as appellant Narayan is concerned, it appears that he was taken into custody on 21 -11-1990 vide arrest memo, Ex. P8. He furnished information, Ex. P40 on 30-11-1980 and pursuant to his information, the investigating agency recovered one golden ring and a silver kanakti from one ramnath vide memo Ex. P26 dated 1-12-1980. To prove the recovery, the prosecution has examined PW 15 Ramnath who has not supported the prosecution story. A glance at the recovery memo Ex. P26 shows that recovery of above two articles was made in the presence of Vijay Lal and ramgopal. But the prosecution has failed to examine these two persons to prove the recovery. That apart, the prosecution has also failed to get the recovered articles identified by the witnesses in test identification. Thus the so called recovery of golden ring and silver Kanakti alleged to be made at the instance of appellant Narayan is highly doubtful and such recovery cannot be the basis for his conviction. ( 13 ) NOW remains the conviction of appellant Ramanand. The evidence on record reflects that accused Dulya and moolya (since deceased) were arrested on 21-11-1980 vide arrest memos Ex. P16 and P. 17. On 4-12-1980 Dulya gave information, Ex. P. 42 and pursuant to his information, the police recovered 10 articles from appellant Ramanand vide memo Ex. P. 13 dated 4-12-1980. It appears that for the articles recovered in pursuance of the information of Dulya and Moolya, the Investigating Officer also recorded information, Ex. P16 and P. 17. On 4-12-1980 Dulya gave information, Ex. P. 42 and pursuant to his information, the police recovered 10 articles from appellant Ramanand vide memo Ex. P. 13 dated 4-12-1980. It appears that for the articles recovered in pursuance of the information of Dulya and Moolya, the Investigating Officer also recorded information, Ex. P. 41 furnished by appellant Laxman Singh S/o Dilip singh on 18-12-1980, though the articles, as stated above, had already been recovered on 4-12-1980. Both the motbir witnesses, namely PW 4 Ram Sahai and PW 6 Ghasi Lal have not supported the prosecution case. It appears that the articles so recovered were got identified by PW 3 babu Lal, PW 11 Mst. Chand Bai and PW 16 Krishna and PW 7 Shyam Swaroop sharma prepared the identification memos Ex. P. 11 and P12. The above witnesses identified the recovered articles at the test identification parade and also in the court. Appellant Ramanand in his explanation under Section 313 Cr. P. C. has admitted the recovery of articles from him vide memo Ex. P. 13. However, his defence was that the recovered ornaments belonged to her daughter-in-law (wife of his son Ramdayal ). According to him, the ornaments were manufactured by a goldsmith of village Roopali. In support of his plea, the appellant examined himself as DW 1 and also got examined nathu, Goldsmith as DW 2, Mst. Chawli, his daughter-in-law as DW3, his son ramdayal as DW4, sister Smt. Anandi as dw 5 and Smt. Gulab mother of Chawli as DW 6. All these witnesses examined in defence have stated that the ornaments recovered vide Memo Ex. O. 13 belonged to Mst. Chawli, daughter-in-law of appellant Ramanand and witness nathu also certified the above fact. Suffice it to observe that goldsmith Nathu himself in his cross examination had admitted that throughout his life he had made these golden ornaments for the first time. It cannot at all be believed that a person would handover gold for making ornaments to a person who is not skilled in making the gold ornaments. Nathu DW 2 has also stated that he gave receipt to ramanand against the gold which ramanand delivered to him. Appellant ramanand has also not produced the said receipt in evidence. Apart from the evidence discussed above, the other evidence available on record is also of general nature. Nathu DW 2 has also stated that he gave receipt to ramanand against the gold which ramanand delivered to him. Appellant ramanand has also not produced the said receipt in evidence. Apart from the evidence discussed above, the other evidence available on record is also of general nature. Thus, taking into consideration the specific statements of Babu Lal, mst. Chand Bai and Krishna who have identified the ornaments at the test identification parade and in the court, I am not prepared to accept the defence version as true. ( 14 ) IN view of what has been held above, the question which now requires adjudication would be whether appellant ramanand could be convicted for offence under Section 412 IPC ? ( 15 ) APPELLANT Ramanand could not give any explanation as to how he came into possession of the stolen property. But the question is whether it can be said that appellant knew that those articles were stolen in dacoity ? The prosecution is obliged to prove such knowledge since that is an essential ingredient of Section 412 as compared to the ingredient of Section 411 IPC. In the case at hand, there is no material to come to the conclusion that appellant Ramanand knew or had reason to believe that the articles were stolen in the course of dacoity. Therefore, the only presumption that can be drawn against the appellant was that he knew that the articles were stolen in which case the offence made out would be one punishable under Section 411 IPC. Accordingly, the conviction of appellant ramanand under Section 412 IPC and the sentence awarded thereunder are set aside. Instead he is convicted under Section 411 IPC. ( 16 ) IN the result, this appeal is partly allowed. The conviction of appellants narayan Laxman S/o Dilip Singh, laxman Singh S/o Nand Singh and balbir under Section 395 IPC and the sentences awarded thereunder are set aside and they are acquitted of the offence charged with. The conviction of Appellant ramanand under Section 412 IPC and the sentence awarded thereunder are set aside. Instead, he is convicted for offence under Section 411 IPC. ( 17 ) AS regards sentence to be awarded to appellant Ramanand, it may be mentioned that age of Ramanand at the time of incident was 56 years as is evident from the arrest memo Ex. P35 dated 8-12-1980. Instead, he is convicted for offence under Section 411 IPC. ( 17 ) AS regards sentence to be awarded to appellant Ramanand, it may be mentioned that age of Ramanand at the time of incident was 56 years as is evident from the arrest memo Ex. P35 dated 8-12-1980. Thus, by now he has attained the age of 82 years and as such it would not be in the interest of justice to send him to jail at this juncture. The ends of justice would be met, if he is sentenced to the period already undergone by him in confinement. Ordered accordingly. Appeal partly allowed.