JUDGMENT Hon’ble Vinod Prasad, J.—Jai Pal Singh, solitary accused was convicted by Session’s Judge, Ghaziabad in S.T. No. 183 of 1978, State v. Shahid and others, P.S. Bahadurgarh, district Ghaziabad for offence under Section 396 I.P.C. and was implanted sentence of 9 years RI, while two other accused were acquitted of the said charge, and hence he has come up to this Court, in this appeal challenging his aforesaid conviction and sentence. 2. A resume of back ground facts, stated concisely, shows that on the intervening night between 9/10th September 1977, at 1 a.m., nine or ten dacoits trespassed into Dharam Singh’s (informant, PW1) house from the front door and pounced the informant on the same cot on which he was sleeping, in his verandah, alongwith his DBBL Gun No. 2492. When informant tried to pick up his gun, it was snatched away by the dacoits. At that time Saraswati, informant’s wife, his son Suresh, daughter Sureshbani, and small children were sleeping in southern verandah. Four of the dacoits were armed with country made pistols while rest of them were armed with spear and lathi. Informant raised hue and cry, which woke up his wife Smt. Saraswati (deceased), who also raised hue and cry. On the said commotion and hearing the shrieks, other house inmates and co-villagers Har Pal Singh, Som Singh, Jodha, Mangad Singh, Mool Chand, Bani Singh, Jai Ram and Mooda woke up. Saraswati recognized co villagers Shahid and Aziz amongst the dacoits and therefore accosted them as to why they were looting them, on which Shahid shot her dead. Co-villager Mooda attempted to apprehend one of the dacoits on which he was also shot at. Rest of the witnesses had seen the incident and had spotted the dacoits in the lights of flashed torches and electric bulb, which was hanging on a nearby pole affixed at the adjacent house of Jodha. Dacoits, after committing dacoity, retreated from the incident place. Besides aforesaid DBBL gun made in France, a gold plated collar ring (Hasali), a golden collar, gold bangles (Kangan), two pairs of silver anklets (Pajeb) alongwith other ornaments and cash amount of Rs. 5,000/- and twenty five saries were looted. 3. Dharam Singh, PW1 got a written report, Ext. Dacoits, after committing dacoity, retreated from the incident place. Besides aforesaid DBBL gun made in France, a gold plated collar ring (Hasali), a golden collar, gold bangles (Kangan), two pairs of silver anklets (Pajeb) alongwith other ornaments and cash amount of Rs. 5,000/- and twenty five saries were looted. 3. Dharam Singh, PW1 got a written report, Ext. Ka 1,about the incident, scribed through Vatan Singh, covered a distance of 4 kms and lodged it at P.S. Bahadurgarh the same morning at 3.30 a.m. against two named accused Aziz and Shahid with seven or eight unnamed dacoits. HM Nawal Kishore Sharma P.W.3, registered the written report, prepared chik FIR Ext. Ka-2 and relevant GD entry Ext. Ka-3. Investigation into the crime was commenced by S.O. R.D. Gaur P.W. 8 who, after registration of the crime, recorded 161 Cr.P.C. statement of the informant, conducted inquest on the cadaver of the deceased Saraswati, prepared inquest report Ext. Ka-7, conducted spot inspection and prepared site plan, Ext. Ka 8, recovered empty cartridges from the spot and prepared it’s recovery memo Ext. Ka-9, collected blood stained and plain earth from the spot and prepared it’s recovery memo Ext. Ka-10. After interrogating other witnesses, PW8 charge-sheeted only accused Aziz vide Ext. Ka-11. Further investigation into the crime was conducted by S.O. Jitendra Pal Singh Yadav, P.W. 4 who, concluding the same, charge-sheeted rest of the two dacoits Shahid and appellant Jai Pal through separate charge-sheets Ext. Ka-4 and Ka-5. 4. While investigation into present dacoity was still in the offing, appellant was arrested by Const. Rajpal Singh, P.W. 10, on 29.1.1978 at 2 p.m. under Arm’s Act and from the place of his arrest, appellant was brought to police station under veil and then was sent to jail through constable Satyapal Singh P.W.5 on 30.1.1978. 5. Injured Mooda was medically examined by Dr. S.C. Agrawal,PW6, on 10.9.1977 at 6.30 a.m. and following injuries were detected on his body vide his medical examination report Ext. Ka-6 : “Examined Shri Mahmood age about 24 years S/o Shri Ahmad Ali R/o Vill Palmada P.S. Bahadurgarh, Distt. Ghaziabad B/B constable Deep Chand P.S. Bahadurgarh on 10.9.1977 at 6.30 a.m. M.I.: A raised black mole on (Rt) side of neck Injuries: (1) Gunshot wound 1cm x 1cm x skin deep on upper 1/3 of (R) arm blood is oozy. No blackening present, Margins are inverted. Adv. Ghaziabad B/B constable Deep Chand P.S. Bahadurgarh on 10.9.1977 at 6.30 a.m. M.I.: A raised black mole on (Rt) side of neck Injuries: (1) Gunshot wound 1cm x 1cm x skin deep on upper 1/3 of (R) arm blood is oozy. No blackening present, Margins are inverted. Adv. X Ray of right upper arm for any pallet. (2) Gunshot wound 1.50cm x 1cm x skin deep on sternum. Blood is oozing. No blackening is present, margins are inverted. Adv. X Ray of right side of chest for any pallets. (3) Contusion wound 2.50 x 3cm on middle 1/3 of (L) chest. Conclusion: All injuries are simple exact injury No. (1) and (2) which are kept U.O. and advised X-Ray, the injuries in the blunt weapon exact injury No. (1) and (2) which are due to fire-arm. Duration Fresh” Autopsy on the cadaver of the deceased was performed on 11.9.1977 at 3.20 p.m. vide Ext. Ka-3 by Dr. Om Prakash, Medical Officer, P.L. Sharma Hospital, Meerut. Genuineness of autopsy report has been admitted by the accused, under Section 294 Cr.P.C. and hence said doctor was not examined during trial. However post mortem examination report of the deceased records that she was about 50 years of age, having an average built body, rigor mortis had passed off from it. Decomposition had started and blisters were present. Internal examination of the corpse revealed that cartriledge, pleura, lungs was lacerated, large intestine contained fecal matters, liver was pale and small intestine had gases. In the estimation of the doctor, death was due to shock and hemorrhage, as a result of ante mortem injuries, which were as follows : “(1) Multiple Gunshot wounds of entry in an area of 12cm x 10cm on back of chest both side in middle part each measuring 0.2cm x 0.2cm x chest cavity deep to muscle deep. No blackening charring present around the wounds. (2) Gun-shot wounds of exist 0.5cm x 0.5cm on outer side Rt. side chest 6cm away from Rt. nipple.” 6. After arrest of the appellant, he was put up for identification, which was conducted by SDM Bhim Singh, P.W.9 on 29.3.1978, who had prepared the identification memo Ext. Ka-12, which indicate that appellant was correctly identified by four witnesses Dharam Singh, Jai Ram, Jodha and Mool Chand. Two other witnesses Suresh and Madan however wrongly identified him. 7. nipple.” 6. After arrest of the appellant, he was put up for identification, which was conducted by SDM Bhim Singh, P.W.9 on 29.3.1978, who had prepared the identification memo Ext. Ka-12, which indicate that appellant was correctly identified by four witnesses Dharam Singh, Jai Ram, Jodha and Mool Chand. Two other witnesses Suresh and Madan however wrongly identified him. 7. Charge-sheeting of the accused resulted in their summoning and finding their case triable by Court of Session’s, it was committed to the Session’s Court where it was registered as S.T. No. 183 of 78, State v. Shahid and others. 1st Additional Session’s Judge, Ghaziabad charged Shahid and Jai Pal, on 23.7.1979 under Section 396 IPC and accused Aziz was charged on 14.4.80 with the same offence. All the accused denied the said charge and claimed to be tried. 8. In it’s attempt to establish the charge, during trial, prosecution tendered in all ten witnesses, out of whom informant Dharam Singh P.W. 1, Jai Ram Singh P.W. 2 and Mool Chand P.W. 7 were the fact witnesses. Examined formal witnesses included HM Nawal Kishore Sharma P.W. 3, second I.O. S.O. Jitendra Pal Singh P.W. 4, constable Satya Pal Singh P.W. 5, Dr. S.C. Agrawal P.W. 6, First I.O. R.D. Gaur P.W. 8, SDM Bhim Singh P.W. 9 and constable Rajpal Singh P.W. 10. 9. In their statements under Section 313 Cr.P.C, all the accused denied incriminating prosecution evidences and claimed their false implication and in their defence, they examined two witnesses Bundu Khan D.W. 1 and Waheed D.W. 2. Bundu Khan had evidenced that there was an enmity in the village regarding landed property of Sardar Khan and because of that reason, false implication, in cooked up cases, started. In the present incident of dacoity, he had gone to the spot soon after the dacoity where Sardar Khan was also present and at that time, none of the house inmates, including the informant, and other co villagers had any idea about the identities of the dacoits nor they were naming anybody amongst them. Informant, PW1, himself was uttering that he could not identify any of the dacoits and, at that time, a conspiracy was being hatched up between Sardar Khan and Majab Khan to falsely implicate accused Shahid, as Sardar Khan had cordial relations with the police. Informant, PW1, himself was uttering that he could not identify any of the dacoits and, at that time, a conspiracy was being hatched up between Sardar Khan and Majab Khan to falsely implicate accused Shahid, as Sardar Khan had cordial relations with the police. Waheed D.W.2, testified that appellant Jai Pal was a laborer at the brick kiln of Mahendra, which was situated at a distance of one mile from the informant’s village and, since three or four years prior to the present incident, Jai Pal was a frequent visitor to the incident village and hence was very well known to the villagers. Moreover, in spare time, Jai Pal did vegetables grocer business in the village and therefore he was very well known to the entire villagers. 10. Trial Judge, after looking into prosecution evidences and other materials on record, through impugned judgment and order, arrived at the conclusion that two named accused Aziz and Shahid were falsely implicated and, therefore, acquitted them of the charge. However, it opined that guilt of appellant had been successfully anointed and therefore convicted him under Section 396 I.P.C. and imposed sentence of 9 years RI, as has already been referred to above, and hence in this appeal aforesaid conviction and sentence is under challenge. 11. In the above factual background, I have heard Sri K.K. Dwivedi, learned amicus curiae in support of the appeal and Sri Sangam Lal Kesharwani, learned AGA for respondent State. Castigating and assailing impugned judgment amicus curiae contends that the same is infallible and suffers from many errors. Firstly, appellant was arrested on 29.1.1979, under 25 Arm’s Act, and was implicated in the present crime by the police. His identification was got done after an enormous delay of two months on 29.3.1978 without any valid explanation being offered and hence this castes a serious doubt regarding involvement of the appellant in the crime. But for identification, there is no other convincing evidence against the appellant regarding his participation in the dacoity. No recovery of any looted article, which could have lend some credence to the prosecution version about appellant’s involvement in the crime, was made from his possession nor he was charged under Section 412 IPC. Thus it is very difficult to believe that appellant would have been amongst the culprits. No recovery of any looted article, which could have lend some credence to the prosecution version about appellant’s involvement in the crime, was made from his possession nor he was charged under Section 412 IPC. Thus it is very difficult to believe that appellant would have been amongst the culprits. Site plan does not support prosecution case of sufficient light illuminating inside portion of the house facilitating identification of the dacoits by house inmates. Place “E” shown in the site plan, from where witnesses had seen the incident, will not be visible from the places ‘’A’ ‘’B’ and ‘’C’ where major portion of the incident occurred and which is inside informant’s house. Mooda, sole injured was deliberately withheld by the prosecution from being examined as he was not inclined to support total hokum by the prosecution and this makes entire prosecution version suspect. Last nail in the prosecution version was stuck by the trial Judge when it acquitted two named accused Shahid and Aziz, albeit, categorically, specific role of shooting down Saraswati dead was assigned to Shahid. Trial Court found his involvement in the crime false and, therefore, amicus curiae contends that none of the prosecution witnesses are reliable and no credence can be attached to their testimonies. They have roped in innocent persons and once grain cannot be separated from the chaff, appellant is also entitled to the benefit of acquittal. No confidence inspiring evidence was led by the prosecution that after arrest appellant was constantly kept under veil till he was brought to the police station and, therefore, in transit he could have been shown to the witnesses. Appellant’s identification was too good to be believed for such a reason. No reliance therefore should be placed on such a belated identification. Supplementary submission to the said contention is that during course of investigation, none of the fact witnesses had disclosed any feature of any of the accused to keep their memory alive and recollect their participation and, in absence of such an evidence, identification by witnesses, more than six months of the incident and two months after the arrest, is very shaky and be discarded. Conjunctive submission is, when participation of two known persons with specific role and weapon, was disbelieved and they were acquitted, there was enough reason for the trial Court not to credit prosecution story about involvement of the appellant in the crime. Conjunctive submission is, when participation of two known persons with specific role and weapon, was disbelieved and they were acquitted, there was enough reason for the trial Court not to credit prosecution story about involvement of the appellant in the crime. Additionally amicus curiae contends that trusting those very witnesses for the appellant, while disbelieving them for known accused with specific role and weapon, was an unjustifiable approach adopted by the trial judge. No role or weapon was assigned to the appellant nor he was alleged to have concealed his identity. This, in the submission of learned amicus curiae, was a very weird conduct on the part of the appellant, who had no criminal background and proclivity and was unknown to the prosecution witnesses as claimed by them. It is not easy to digest the claim that an unknown person with no criminal record to his credit will commit dacoity without concealing his identity so as to facilitate his identification. Primarily, on the strength of above submissions, coupled with some others, amicus curiae contends that appellant’s appeal be allowed and he be acquitted of the charge. 12. Conversely, learned AGA, although supported the judgment, but fairly pointed out that under Section 313 Cr.P.C. altogether a different case was put to the appellant by the trial Judge, contrary to the prosecution evidence and this is a very damaging lacunae in the prosecution case. Learned AGA contended that the manner in which 313 Cr.P.C. statement of the accused was recorded by the trial Judge is not only unsatisfactory but indicate total non- application of mind by the trial Judge and, therefore, the judgment of conviction and sentence cannot be sanctified. 13. I have considered the arguments raised by both the sides and have perused the entire evidences of all the fact witnesses. It is an incident, which occurred in the dead hour of night at 1 a.m. Although electric bulb light is alleged to have illuminated the place of the incident but the site plan indicates otherwise. Place where Mooda was injured, which has been shown with the letter ‘’F’ could not have been visible and spotted by the informant and the other house inmates. “F” is surrounded by walls of the houses and the rays emanating from place ‘’X’ will not be available at that place. Place where Mooda was injured, which has been shown with the letter ‘’F’ could not have been visible and spotted by the informant and the other house inmates. “F” is surrounded by walls of the houses and the rays emanating from place ‘’X’ will not be available at that place. From place ‘’E’ witnesses could not have spotted assault on Mooda and therefore this allegation by the prosecution remains unsubstantiated. It is worth noting that Mooda himself did not enter into the witness box to support the prosecution story. None of the house inmates had disclosed any special feature of any of the dacoits and they had no special reason to remember it after a lapse of six months. Their identification is wrong and cannot be given due weightage because dacoits who were identified by them were acquitted by the trial judge, may be for the reason that they were falsely implicated because of animosity, but that fact is more intensely damaging, as it indicate that fact witness are not wholly reliable and they had tried to implicate false persons. Therefore, it is very doubtful, as to whether there was sufficient light at the spot to identify the dacoits. Complicity of other unknown dacoits could not be deciphered during investigation and this also castes a doubt on the prosecution version regarding participation of the appellant in the crime because of fading light. 14. Another disquieting feature of the case is that appellant is alleged to have been apprehended on 29.1.78 by constable Rajpal Singh P.W. 10. Perusal of his testimony indicate that the arrest was made on 29.1.1978 under the Arm’s Act. Prosecution has not brought on record any material as to what happened in that case. Secondly, identification of the appellant was conducted on 29.3.1978 in district jail Meerut. No explaination has been offered by the prosecution for such belated conducting of test identification parade. In such a view, criticism by learned amicus curiae that in between this period, appellant was shown to the witnesses, cannot be ruled out. In such a view, so far as identification of the appellant by the four witnesses are concerned, it does not conclusively and convincingly establish participation of the appellant into the crime. His identification is too good to be believed especially when his special features were not disclosed at any earlier point of time by identifying witnesses. 15. In such a view, so far as identification of the appellant by the four witnesses are concerned, it does not conclusively and convincingly establish participation of the appellant into the crime. His identification is too good to be believed especially when his special features were not disclosed at any earlier point of time by identifying witnesses. 15. Another unsatisfactory feature of the case is that two named accused persons, out of whom one was specifically anointed the role of shooting down the wife of the informant dead during course of the incident, have been acquitted. If three fact witnesses P.W. 1, P.W. 2 and P.W. 7 were disbelieved by the trial Judge, in respect of involvement of two named accused persons, there was no occasion for the trial Judge to rely upon the testimonies of those very witnesses in respect of the present appellant. Entire dacoity was committed inside the house and, therefore, so far as incident inside the house is concerned, torch light would not have been available. Light eliminating from the house of Jodha will not be sufficient enough to facilitate identification of the dacoits. It is because of this reason that two accused were wrongly identified and, during course of the investigation, involvement of no other person could be surfaced by the two Investigating Officers. Therefore, I am of the view, that identification of the appellant was not possible during course of the incident. Six months after the incident without divulging any special feature of the appellant, his identification does not inspire any confidence. In this respect, deposition of P.W. 7 is categorical that he was unable to identify any special marks of any of the dacoits. 16. Turning towards legal flaw pointed out by learned AGA, in respect of recording of 313 Cr.P.C. statement of the accused, I find the criticism well merited. Trial Judge has fathomed out altogether a different case. Incident, in the present case, occurred in the intervening night between 9/10th September 1977 at 1 a.m. inside informant’s house in which his wife Saraswati was murdered. Trial Judge, however, while examining the accused under Section 313 Cr.P.C., put to them that on 9.8.1977 in the evening at 9 p.m. alongwith 8 or 9 dacoits, dacoity was committed at the house of Dharam Singh situated in village Palwara, P.S. Bahadurgarh, in which Mrs. Shanti was shot dead. This was never the prosecution case. Trial Judge, however, while examining the accused under Section 313 Cr.P.C., put to them that on 9.8.1977 in the evening at 9 p.m. alongwith 8 or 9 dacoits, dacoity was committed at the house of Dharam Singh situated in village Palwara, P.S. Bahadurgarh, in which Mrs. Shanti was shot dead. This was never the prosecution case. Trial Judge framed the question under Section 313 Cr.P.C., regarding actual incident, without any application of mind and without caring what he was asking to the accused. Such type of accused examination by the trial Court, culling out altogether a different story, is most worrying and cannot be countenanced. All the accused persons had denied such a story. Since no incriminating circumstances occurring against the appellant, in the depositions of prosecution witnesses, were put to him, his case definitely has been prejudiced and I say no more. On this aspect of the matter, reliance can be placed on some of the decisions by the Apex Court as exemplar, which are referred to herein below : 17. In Ganesh Gogoi v. State of Assam, AIR 2009 SC 2955 , it has been held by the Apex Court as under : “28. It does not appear that any witness has deposed that the appellant is a member of ULFA. Therefore, it is a very unfair question. The Court has allegedly convicted the appellant under Section 3(2)(i) but the ingredients of the Section 3(2)(i) were not been put to him. Therefore, there has not been a fair examination under Section 313 of the Cr.P.C. at all. The provisions of Section 313 are for the benefit of the accused and are there to give the accused an opportunity to explain the “circumstances appearing in the evidence against him”. In Basavaraj R. Patil and others v. State of Karnataka and others, (2000) 8 SCC 740 , this Court held that those provisions are not meant to nail the accused to his disadvantage but are meant for his benefit. These provisions are based on the salutary principles of natural justice and the maxim ‘audi alteram partem’ has been enshrined in them. Therefore, the examination under Section 313 has to be of utmost fairness. But that has not been done here. This is also a factor vitiating the trial.” 18. These provisions are based on the salutary principles of natural justice and the maxim ‘audi alteram partem’ has been enshrined in them. Therefore, the examination under Section 313 has to be of utmost fairness. But that has not been done here. This is also a factor vitiating the trial.” 18. In Asaraf Ali v. State of Assam, AIR 2009 SC (Suppl) 654, it has been held by the Apex Court as under : “20. As rightly contended by learned counsel for the appellant no witness has stated that on the date of occurrence the accused had caused severe injury to the deceased by assaulting him on the head from behind. The circumstances which were relied upon by the trial Court to find the accused guilty were not specifically brought to the notice of the accused. Therefore, in essence, his examination under Section 313 of the Code was rendered an empty formality. On that count alone, the impugned judgment of the High Court cannot be sustained and is set aside. The conviction recorded stands set aside. The bail bond of the appellant who is on bail shall stand discharged.” 19. In Ranvir Yadav v. State of Bihar, AIR 2009 SC (Suppl) 1439, it has been observed by the Supreme Court as under : “6. The word ‘generally’ in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law. A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 7. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.” Without volumnizing this judgment any further, on an overall analysis, I find that conviction of the appellant is totally unwarranted and cannot be sustained and appellant Jaipal Singh, deserves acquittal. Appeal is allowed. Conviction of the appellant Jaipal Singh, under Section 396 I.P.C., recorded by Session’s Judge, Ghaziabad in S.T. No. 183 of 1978, State v. Shahid and others, is hereby set aside. Appellant is acquitted of said charge. He is on bail, he need not surrender, his bail bonds and surety bonds are discharged. Let a copy of the judgment be certified to the trial Court for it’s intimation. ——————