JUDGMENT 1. - The State of Rajasthan has preferred this appeal against the judgment and order dated November 09, 1989 passed by the Addl., District & Sessions Judge, Kishangarhbas (Alwar) in Sessions Case No. 61/1988, by which he acquitted the accused-respondents for the offence under Sections 109, 120B, 398, 393 IPC and 3/25 & 4/25 of the Arms Act. 2. The necessary facts giving rise to this appeal in short are as follows- 3. That on September 16, 1998 at 12.05 noon at police Station Tijara an unknown person informed on telephone that dacoit's had come in and were looting the branch of Punjab National Bank at Tijara. On this information, the 1o police officers with their force reached at the place of incident but the dacoit's ran away. The police was also went behind the dacoit's but could not caught them and came back at 1.00 P.M. Thereafter the bank Manager Shri Harinarayan Gupta (PW-1) submitted a written report (Ex. P-1) to the effect 1 that three persons came on Yezdi Motor Cycle and leaving outside the motor-cycle in starting condition. They entered in the Bank premises. One was armed with Revolver, second one was armed with knife and third with hockey. After entering the persons who was armed with Revolver asked all the persons who were in bank to move at one side and the person who was armed with hockey gave hockey blows on the glasses of the window and broke them. The third one could not succeed in moving and taking the cash box as it was heavy. Meanwhile on making hue and cry by some of the customers and bank employees all three persons run away but while running 1 away one bag pertaining to these dacoit's fell down. It was also reported that no injury was received by any of the bank employee. It was also stated that the age of these three persons were about 20 to 30 years. On this information a FIR was lodged under Section 393 IPC and investigation started. During the investigation on 30.9.1988 accused Ravindra, Deep Chand and Guru Charan were arrested. The identification parade was conducted on 05.10.1988. After that, the fourth accused Sultan was arrested on 8.10.1988, on the basis of information of accused-respondents knife, gupti and katta were recovered. 4. On this information a FIR was lodged under Section 393 IPC and investigation started. During the investigation on 30.9.1988 accused Ravindra, Deep Chand and Guru Charan were arrested. The identification parade was conducted on 05.10.1988. After that, the fourth accused Sultan was arrested on 8.10.1988, on the basis of information of accused-respondents knife, gupti and katta were recovered. 4. After investigation a challan was filed before the learned Magistrate, Kishangarhbas (Alwar) against the accused respondents but learned Magistrate has committed the case to the court of Addl. District & Sessions Judge, Kishangarhbas (Alwar). 5. The learned Addl. District & Sessions Judge, Kishangarhbas (Alwar) framed the charges against the accused-respondents as under- (a) Accused Sutlan under Sections 109, 120B, 398 and 393 IPC. (b) Accused Gurucharan under Sections 109, 120B, 398 and 393 IPC. (c) Accused Deep Chand under Sections 109,120B, 398 and 393 IPC and 3/25 of the Arms Act (d) Accused Ravindra under Section 109, 120B, 398 and 393 IPC and 4/25 Arms Act. 6. The charges were read over and explained to the accused-respondents who pleaded not guilty and claimed trial. 7. During the trial, the prosecution in support of its case examined as many as 27 witnesses and got exhibited some documents. 8. Thereafter the statements of the accused-respondents under Section 313 Cr.PC. were recorded. No defence witness was examined by the accused-persons. 9. After conclusion of the trial, the learned Addl. District & Sessions Judge, Kishangarhbas (Alwar) vide his judgment and order dated November 09, 1989 acquitted the accused-respondents from the charges framed against them holding interalia that the prosecution has not been able to prove its case beyond all reasonable doubt. 10. Aggrieved against the judgment and order of the Addl. District & Sessions Judge, Kishangarhbas (Alwar) dated November 09, 1989 the State of Rajasthan has preferred this appeal. 11. In this appeal it has been submitted by the learned Public Prosecutor that the Addl. District & Sessions Judge, Kishangarhbas (Alwar) has not considered the statements of the prosecution witnesses properly and should have been believed by the Addl. District & Sessions Judge, Kishangarhbas (Alwar) and thus, the impugned judgment and order dated November 09, 1989 is erroneous one and should be set aside. 12. It is also contended by the learned Public Prosecutor that the identification was conducted and all accused were identified by the witnesses. They were also identified in the court. District & Sessions Judge, Kishangarhbas (Alwar) and thus, the impugned judgment and order dated November 09, 1989 is erroneous one and should be set aside. 12. It is also contended by the learned Public Prosecutor that the identification was conducted and all accused were identified by the witnesses. They were also identified in the court. In view of the Identification Parade conducted at jail as well as identification of the accused before the court, but the learned trial court acquitted the accused-respondents which is illegal and without any reason. 13. On the other hand, the learned counsel for the accused-respondents has submitted that the impugned judgment and order passed by the Addl. District & Sessions Judge, Kishangarhbas (Alwar) is based on the correct appreciation of evidence and after giving cogent reasons the Addl. District & Sessions Judge, Kishangarhbas (Alwar) has acquitted the accused respondents from the charges framed against him and thus, no interference is required with the impugned judgment and order of the Addl. District & Sessions Judge, Kishangarhbas (Alwar). 14. On behalf of the learned counsel for the accused-respondents an attention was drawn upon the statement of PW-1 Harinarayan. In his statement he accepted that there were other persons also present at the time of occurrence but the statement of those persons have not been recorded by the police. He has also drawn the attention of this court on the statements of PW-2 Anil Rao, PW-7 Rajendra Kumar Yadav, PW-8 Vimal Kumar Jain, PW-9 Kashmiri Lal Verma and PW 10 Angadram Saini and stated that all the statements of the above witnesses are contradictory from each other. He has also drawn the attention of this court upon the statement of PW-14 Hansraj who says 15. " ;g ckr lgh gS fd Fkkus esa eq>s o cSad okyksa dks cqykdj rhuksa dks fn[kk fn;k Fkk fd bu rhuksa us cSad esa MdSrh Mkyh gS budks igpkuuk iMs+xkA " 16. Mr. Ranjan has also drawn the attention of this court on the statement of PW-21 Ramphool who is the employee of this bank and 0 made the statement in the court " cSad esa okjnkr djrs fdlh dks ugha ns[kkA " 17. The learned counsel for the accused-respondents Mr. Rangan contended that it is most unsafe to hold the accused-respondents guilty on the basis of identification only which was not conducted according to the provisions of law. The learned counsel for the accused-respondents Mr. Rangan contended that it is most unsafe to hold the accused-respondents guilty on the basis of identification only which was not conducted according to the provisions of law. For this purpose, he has relied upon the judgment of this court in Radhey Shyam & Bachala alias Narayan v. State of Rajasthan RCC 1985 at page 145 at para No. 28 which reproduced as under "In the present case Gordhanlal (RW.1) has not given description of Narain Singh appellant in his statement u/s 161. Cr.P.C. or in court statement. He has not mentioned even the slightest mark of identification regarding his structure, clothes which he was wearing, or any other specific mark by which he was going to identify him. So, it is most unsafe to hold Narain Singh appellant guilty on the basis of identification only, which was not conducted according to the provisions of law. The learned Magistrate did not even mention the time of conducting identification parade in the memo. Mentioning of time is very essential and material factor specially when the learned Magistrate conducted two identification parades on the same day." 18. The learned advocate Mr. Ranjan has also relied upon the judgment delivered by the Apex Court of this court in the case of Rajesh Govind Jagesha v. State of Maharasthra in AIR 2000 Supreme Court Page 160 , which reads as under- "[A] Penal Code (45 of 1860), S.300-Murder trial-Evidence- Test identification parade-Accused having beard and long heirs at time of commission of crime as mentioned in FIR- Had removed same at time of test identification parade-No person with beard and long hair however, included in parade-witnesses alleged to have identified accused at first sight though he had removed beard and long hair- Possibility of witnesses having seen accused between date of arrest and test identification parade-Not ruled out - Identification parade held after inordinate delay of about five weeks from arrest of accused-Explanation for delay not trustworthy-Plea as to non-availability of Magistrate in city like Bombay though investigating agency was not obliged to get parade conducted from specified Magistrate- Cannot be accepted-Held, accused was entitled to benefit of doubt." 19. He has also relied upon the judgment delivered by the Hon'ble Supreme Court in AIR 1993 SC 2618 in the case of Girja Shankar Misra v. State of UP which runs as under- "The occurrence took place when the sun was setting and there was day-light meaning twilight and comparatively there was less light in the gallery which was a covered one. From the evidence of these three witnesses it is clear that there was a little opportunity to see the faces of the culprits and that too for a view moments only. It is needless to say that their minds were highly disturbed on account of the suddenness of the occurrence and the firing of a number of shots in quick succession. Vivek Kumar, PW7, who had a defective eye-sight, as already mentioned, stated that Nathu Singh had some special features like his right nostril and the ears were bored. As regards Girdhari, his moustaches and hair were brownish, but this witness did not mention the special features of the miscreants in the statements before the Police. Vivek Kumar, PW7 described in a general way that all the miscreants were young and well-built. Mrs. Ram Devi, PW 9, described them as all young and between 30 and 40 years. In regard to Nathu Singh, PW 9 stated in the Court that he was 'sanwala' in complexion with his thick moustaches. In regard to Girdhari, it was stated that he was also 'sanwala' with long moustaches and black hair. Mrs. Ram Devi, PW9, described the accused Nathu Singh in Court as a strongly built and massive person with 'gahra sanwala' complextion and moustaches neither twisted nor dropping. PW 1 described Nathu Singh before the Police as having imposing looks and twisted moustaches and 'gahra sanwla'. In the court he stated that the accused Nathu Singh was 'sanwala' and not 'gahra sanwala', strongly built with thick lips and bored nose and ears. The accused Girdhari was described in the Court as having short stature with brown moustaches and brownish hair. Thus there are any amount of variations and improvements regarding the description of Nathu Singh and Girdhari. With this back ground we shall now examine the test identification proceedings. There are three objections in regard to these proceedings. The accused Girdhari was described in the Court as having short stature with brown moustaches and brownish hair. Thus there are any amount of variations and improvements regarding the description of Nathu Singh and Girdhari. With this back ground we shall now examine the test identification proceedings. There are three objections in regard to these proceedings. Firstly that there was delay, secondly the accused were not shown to the witnesses in several ways and thirdly the proceedings suffer from vital irregularities. 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. But in a case of this nature the test identification parade assumes importance particularly if held within a reasonable time after the commission of the offence. As already noted there was enormous delay in holding the identification parade. For the first time an application for ordering the parade was moved on March 29, 1973. On that day the Investigating Officer sought adjournment representing that some of the witnesses had gone out and they were not available. But there is nothing to show that proper steps were taken to procure their presence for nearly two weeks. PW 45, First Class Magistrate, who ultimately conducted the test identification parade deposed that the parade was scheduled to be held on March 29, 1973, but he did not go to the Jail as he was informed that the witnesses were not present. Then he fixed the next date as April 16, 1973. When he went to the Jail, the Jailor of the District Jail, Orai submitted a report, marked as Ex.PW 45/A. In that report it was mentioned that the descriptions of the accused persons who were to take part in the parade were different and not in accordance with what was mentioned in the Jail Register and that it would take at least one month for the recorded features to tally with those of the accused persons. On this report PW 45 made an endorsement and the proceedings were not carried out on that day. PW 45, however, examined -Nathu Singh and Girdhari personally and compared their descriptions with what was mentioned in the Jail Register and he noticed some differences. On this report PW 45 made an endorsement and the proceedings were not carried out on that day. PW 45, however, examined -Nathu Singh and Girdhari personally and compared their descriptions with what was mentioned in the Jail Register and he noticed some differences. On the same day the counsel on behalf of the accused moved an application, Ex.PW 45/C, complaining that in the proposed parade no other persons with similar appearance and features to that of the accused have been made to take part. The learned Magistrate passed an order, marked as Ex. PW 45/D. That order shows that the Public Prosecuting Officers had seen the suspects. The Magistrate, however, noted that the Public Prosecutors assured him to take all precautions not to indicate the features of the suspects to any of the witnesses. Having passed this order the learned Magistrate postponed the proceedings for another one month on 19.5.73. The Sub-Divisional Magistrate addressed a letter, Ex. PW 45/E, to the Superintendent, District Jail that the identification parade proceedings had been adjourned for 19.5.73 hoping that the hairs of the accused would grow to the desired extent by that date, and in case there is any doubt about the growth of the hairs, the Superintendent, District Jail shall intimate him the next probable date by which the features of the accused persons could be similar to those as on the date of their entry into the jail. PW 45 deposed that the size of the moustaches of these three accused was not going to be that what has been described in the Jail Register. On 25.5.73 he received a letter, Ex.PW 45/F, from the Superintendent, District Jail stating that the growth of the moustaches may take some more time. Again the parade was postponed and ultimately it was conducted on June 4, 1973. PW 45 further deposed that he mixed 10 persons of similar physique and features and also took some other precautions. He admitted in his evidence that at the time of holding of the parade Shri Ajay Pal Singh, PP CID and Shri S.N. Tiwari, PP District Police were present on behalf of the State and Shri Surender Pal Singh, Advocate and two other advocates were also present. On that very day the defence counsel on behalf of the accused moved an application, Ex. PW45/K, stating that persons with similar features should be mixed. Ex. On that very day the defence counsel on behalf of the accused moved an application, Ex. PW45/K, stating that persons with similar features should be mixed. Ex. PW 45/G contains the proceedings. In that it is clearly mentioned that the counsel for the accused moved an application to the effect that the suspects have been seen by the PP CID and PP District Police and there is every apprehension that they would indicate the appearance and the features of the suspects to the witnesses which would result in the accused persons being identified. That application was not placed on record. In the proceedings the Magistrate has further noted that he made it clear to the PP CID and the PP Civil Police not to intimate any features of the suspects to the witnesses. PW 45 asked the accused whether he had any objection and he gave a note raising several objections. In the cross-examination, it was suggested to him that he gave the long dates in order to facilitate the prosecution to show the accused persons to the witnesses, being an Executive Magistrate. He however, denied the same. From the above facts, it can be seen that there was inordinate delay in conducting the proceedings. It is also rather strange that PW 45 postponed the proceedings on the basis of a letter given to him by the Jailor stating that the moustaches of the accused have not grown to the same size. PW 45's evidence itself shows that Public Prosecuting Officers were present there and they had seen the accused. Admittedly both the Public Prosecutors belong to the Police Department and naturally interested in the result of the case. At least existence of the reasonable possibility of communicating the features of the accused to the witnesses cannot be ruled out. From the record it would also appear that Nathu Singh was wearing a white Kurta and among the persons mixed there was only one person wearing Kurta and that too was not so white. Same is the case with regard to Girdhari. Several such objections were raised by the accused. It was stated that the persons selected to be mixed did not have the similar features. PW 45, however, did not offer any comments. These are all serious infirmities in the test identification proceedings held by PW45. Same is the case with regard to Girdhari. Several such objections were raised by the accused. It was stated that the persons selected to be mixed did not have the similar features. PW 45, however, did not offer any comments. These are all serious infirmities in the test identification proceedings held by PW45. As already noted Pws 1, 7 and 9 did not have the sufficient opportunity to see the culprits and the long delay in holding the parade affects their evidence. Apart from this the accused had been complaining that they were taken from place to place and ultimately were transferred to District Jail, Oral. PW 13, a local resident, stated that on the day following the arrest of these accused persons they were taken to Police Lines by PW 53 and at that time they saw the faces of the accused uncovered and at that place PWs 3,6,7,12 were also present. There was every possibility that they would pass on the information to the other witnesses. Having given our earnest consideration we are of the view that the plea of the accused that they were shown to the witnesses is not without substance. At any rate the test identification parade loses its significance for all the above mentioned reasons in which case the identification of Nathu Singh by PWs 1, 7 and 9 cannot be accepted." 20. Learned counsel Mr. Ranjan has also relied upon the judgment delivered in AIR 1972 SC Page 283 Hasib v. The State of Bihar , which reads as under- "(B) Evidence Act (1872), Section 9-Evidence of test identification parade cannot form the basis of conviction when the witness does not identify the accused as the person whom he had seen at the time and place of the occurrence. AIR 1960 SC 1340 , Rel. on. The purpose of test identification is to test the statement of the witness made in the Court, which constitutes substantive evidence, it being the safe rule that the sworn testimony of the witness in Court as to the identity of the accused requires corroboration in the form of an earlier identification proceedings. Where there is no such substantive evidence at all as to the identity of the accused the earlier identification parade cannot be of any assistance to the prosecution." 21. Learned counsel Mr. Where there is no such substantive evidence at all as to the identity of the accused the earlier identification parade cannot be of any assistance to the prosecution." 21. Learned counsel Mr. Ranjan has also relied upon the judgment delivered in AIR 1973 SC Page 337 Yashwant v. State of Maharashtra which reads as under- "The infirmities in the test identification parade of a previously un-known bearded man, whom even Zingu could only describe as "a guest from Gondia". Does make the evidence as to the identity of the bearded man who attacked Sukal with an axe doubtful. Neither Babji nor Jiwan knew him from before and described him as "a new man". The trial court has also observed that the appellant Brahmanand had a beard. It is clear from the admission of Babaji and Jiwan that Brahmanand was brought by the Police and made to sit outside the Court of the Magistrate where these witnesses also waited before the identification parade began. The Magistrate took no precautions to see whether other similar bearded man joined the parade. There were only five other persons in the parade. Apparently Brahmanand had a tape on his neck at that time. The identification proceedings was, therefore, rightly described by the trial court as "a farce". 22. In view of the above arguments it is contended by Mr. Ranjan that the learned Addl. District & Sessions Judge, Kishangarhbas (Alwar) has rightly appreciated the evidence and not relied upon the identification parade. 23. The court attention was also drawn on the following judgment of the Hon'ble Supreme Court 24. Umrao v. State of Haryana & Ors. 2006(2) WLC (SC) Cri. 98: SC 2006 Vol. 10 Page 136 in which the Lordships of the Supreme Court 1 has observed in para 26 that "it is now well settled that if two views are possible, the appellate court should not interfere with the judgment of acquittal passed by the court below." 25. I have heard learned Public Prosecutor as well as the learned counsel for the respondents and also gone through the record of the case. 26. I find that the Addl. District & Sessions Judge, Kishangarhbas (Alwar) has given cogent reason for not relying upon the prosecution witnesses cannot be said to be erroneous one. 27. I have heard learned Public Prosecutor as well as the learned counsel for the respondents and also gone through the record of the case. 26. I find that the Addl. District & Sessions Judge, Kishangarhbas (Alwar) has given cogent reason for not relying upon the prosecution witnesses cannot be said to be erroneous one. 27. Looking to the evidence just discussed above, it can easily be said that the prosecution has not been able to prove its case beyond all reasonable doubts against any of the accused respondents for the offence for which they have been charged and the Addl. District & Sessions Judge, Kishangarhbas (Alwar) was right in acquitting the accused respondents. I have no reason to dissent from the finding of acquittal recorded by the Addl. District & Sessions Judge, Kishangarhbas (Alwar) as they appear to be reasonable and plausible in the facts and circumstances of the case. The Addl. District & Sessions Judge, Kishangarhbas (Alwar) has given cogent reason in acquitting the accused respondents. 28. It may be stated that in appeal against acquittal though powers of the High Court to reassess the evidence and to reach its own conclusions are as extensive as in an appeal against an order of conviction, yet as a rule of prudence, it should always give proper weight and consideration to the views of the trial judge as to the credibility of the witnesses; the presumption of innocence in favour of the accused, right of the accused to the benefit of any doubt and thus, High Court should not ordinarily disturb the order of acquittal. Therefore, this court does not want to interfere with the impugned judgment and order of acquittal passed by the Addl. District & Sessions Judge, Kishangarhbas (Alwar) and this appeal is liable to be dismissed. 29. For the reasons indicated herein above, the appeal filed by the State of Rajasthan fails and the same is hereby dismissed, after confirming the judgment and order of acquittal dated November 09, 1989 passed by the Addl. District & Sessions Judge, Kishangarhbas (Alwar).The accused- respondents are on bail and need not to surrender. Their bail bonds stand discharged.Appeal Dismissed. *******