JUDGMENT This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred by appellants/accused against a judgment dated 25th February, 2011 in Special Sessions Case No. 22/2008 delivered by the Special Judge, Datia (under M.P. Dakaiti and Vyapharan Prabhavit Kshetra Adhiniyam), hereinafter referred to 'Adhiniyam', thereby convicting the appellants/accused for commission of offence punishable under Section 397 read with Section 13 of the Adhiniyam and sentencing them to undergo seven years' rigorous imprisonment with a fine of Rs. 5,000/- (Rupees Five thousand only), each, in default of payment of which to serve additional one year's rigorous imprisonment each by the accused. 2. In brief, as per prosecution version, the incident in short, is that on 3rd October, 2007 at 8 a.m., when complainant Shahid @ Seth proceeded from his house on his motorcycle with a cash of Rs. 50,000/- to purchase goats and coming back at around 2 o'clock, then on the way, between Pathhari to Chak Halai, three miscreants came to him riding on the black coloured Yamaha Motorcycle bearing No. MP 07 CB 0693. The miscreants compelled him to stop his motorcycle and by putting the country-made pistol on his chest and neck extorted Rs. 35,000/- from his pocket. On the resistance of complainant, they caused injury on his palm by means of butt of the pistol. Thereafter, the miscreants fled away from the spot. The complainant then lodged FIR at about 3.50 p.m. on the same day in Police Station, Jigna District Datia, M.P. The investigation was set in motion. The injured complainant was medically examined. During investigation, accused Jagmohan was arrested on 20th December, 2007. Thereafter, on information as mentioned in the memorandum under Section 27 of the Evidence Act, the looted property, viz., one currency note of Rupees Five hundred wrapped in the handkerchief was recovered. The motorbike used in the incident was also recovered from the agricultural field situated on village road at Pathhari to Chak Halai. The arrested accused Jagmohan was identified on 5th March, 2008 in presence of Shri P.C. Niranjan, Executive Magistrate, Datia. Rest two accused Jeewan was arrested on 12th May, 2008 and on his information recorded in Memorandum under Section 27 of the Evidence Act, looted property, viz., one currency note of Rs. Five hundred was also recovered from him. Remaining accused Keshav was absconded. Rest two accused Jeewan was arrested on 12th May, 2008 and on his information recorded in Memorandum under Section 27 of the Evidence Act, looted property, viz., one currency note of Rs. Five hundred was also recovered from him. Remaining accused Keshav was absconded. After investigation, the charge-sheet against accused Jagmohan, Jeewan and supplementary charge-sheet against accused Keshav were filed before the Criminal Court. On committal, the sessions trial commenced against the present accused/appellants. The charges for offence under Section 397 read with Section 13 of the Adhiniyam were framed. After evidence of prosecution, the Trial Judge convicted the accused and sentenced them accordingly, hence, the appellants/accused preferred this appeal. 3. The contention of the appellants is that the judgment under appeal is against the law and procedure and, therefore, same is liable to be set aside. It is submitted that the Trial Judge while convicting the accused/appellants did not properly assess the evidence and the documents on record, therefore, the conclusion arrived at without proper consideration of factual and legal aspects is not sustainable in law. It is argued that the main ingredients of the offence under Section 397 of IPC are not proved by the evidence on record. It is further submitted that for belated test identification of accused Jagmohan, no cogent reason has been given by the prosecution and the conviction of the accused is based upon flimsy grounds. Accordingly, it is prayed that by allowing the appeal, judgment under challenge may be set aside and the accused-appellants may be acquitted of the alleged offences. 4. Per contra, the learned Panel Lawyer appearing on behalf of the respondent/State contended that the prosecution by placing reliable and cogent evidence very ably proved the guilt against accused/appellants and there is no infirmity or illegality committed by the Trial Court in awarding conviction and sentence. Hence, it is prayed that by dismissing the appeal, the conviction and sentence recorded by the learned Trial Court may be upheld. 5. Heard the learned Counsel appearing for the appellants and the learned Panel Lawyer for the respondent/State. Also perused the record of the Trial Court and the law applicable to the present case. 6. The question for consideration in this appeal is whether the ingredients of offence of dacoity under Section 397 of IPC are attracted in the present case and the Trial Judge has rightly concluded on the basis of evidence? 7. Also perused the record of the Trial Court and the law applicable to the present case. 6. The question for consideration in this appeal is whether the ingredients of offence of dacoity under Section 397 of IPC are attracted in the present case and the Trial Judge has rightly concluded on the basis of evidence? 7. Heard the learned Counsel for the appellants and the learned Panel Lawyer for the respondent/State. Also perused the record of the Trial Judge and the law applicable to the case. 8. To prove the guilt, the prosecution examined in all fourteen witnesses. 9. The victim/complainant Shahid (P.W. 9) deposed in his evidence that 2-3 years ago, he was going from Village Pathhari to Village Chak for purchasing the goats on his motor bike. At the time of departure from his residence he was possessing Rs. 50,000/- with him and in Village Jigna, he purchased goats valued Rs. 9,000/-. In Village Pathhari he purchased the goats valued Rs. 6,000/-. So, at the time of incident he was possessing cash of Rs. 35,000/- with him. In the noon, when he proceeded from Village Chirai to Village Chak, on way, three accused prevented him. Then accused Jeewan put his country made pistol on his back while accused Jagmohan put country made pistol on his head. On the point of pistols, the accused "snatched Rs.35,000/- from his pocket forcefully. When he objected, the accused inflicted a blow by country-made pistol injuring his hand. Other accused also assaulted on his body. When all accused after committing incident ran away, he chased them and tried to stop by pelting stones. He lodged FIR (Exh. P-6) in Police Jigna. Thereafter, the police seized the motor bike used by the accused in commission of crime by seizure memo (Exh. P-4). The police referred him to the District Hospital, Datia for medical examination of the injuries sustained during incident. During medical examination of the injured, a fracture of left hand was found. In Panchayat Bhawan in presence of Mahadev Brahmin, he identified currency note of Rs. 500/- which was soaked with oil drops and the handkerchief of pink coloured with engraved number 786' on it. The identification memo to that respect is Exh. P-5. He also identified the accused in presence of Naib Tehsildar of Datia by test identification memo (Exh. P-7). In Panchayat Bhawan in presence of Mahadev Brahmin, he identified currency note of Rs. 500/- which was soaked with oil drops and the handkerchief of pink coloured with engraved number 786' on it. The identification memo to that respect is Exh. P-5. He also identified the accused in presence of Naib Tehsildar of Datia by test identification memo (Exh. P-7). In cross-examination, the witness admitted that prior to the incident he did not know the name of the accused and so he did not mention their names in the FIR. He also admitted that at time of offence, one of the accused was covering his face. After incident, he informed the same on mobile phone to his brother Nasir. After lodging FIR by the complainant, a spot map was prepared in his presence and his case diary statement was also recorded on the day of incident by the police. 10. P.C. Niranjan (P.W. 10), Naib Tehsildar of Tehsil Datia deposed that in Crime No. 88/2007 of Police Station Jigna on 5th March, 2008 he conducted the test identification parade and complainant Shahid (P.W. 9) identified accused Jagmohan among 5-6 persons in prison. Accordingly, he prepared the test identification memo (Exh. P-7). 11. Ajay Chanana (P.W. 14), Station House Officer of P.S., Jigna deposed that on 3rd October, 2007 at about 3.40 p.m., he being posted as Sub-Inspector in the Police Station, Jigna recorded the FIR on oral instruction of injured complainant Shahid and registered the Crime No. 0/61/2007 under Section 394 of IPC and Section 11/13of the Adhiniyam in Police outpost at Urgaova and sent the FIR for registration of crime in Police Station, Jigna. He prepared spot map (Exh. P-7) in presence on the direction of complainant. On the day of incident, he recovered the motorbike Yamaha black coloured bearing Registration No. MP 07 CB 0693 used in commission of crime by accused from the agricultural field in presence of complainant and two attesting witnesses vide Exh. P-4. He stated that the case-diary statement of the complainant was recorded on the day of incident and the victim was sent for medical examination on that day to District Hospital, Datia. Rest investigation in this case was conducted by Siddharth Priyadarshan (P.W. 13) the in-charge of the Police Station, Jigna. He recorded the case-diary statements of witnesses from 14th to 17th December, 2007. Rest investigation in this case was conducted by Siddharth Priyadarshan (P.W. 13) the in-charge of the Police Station, Jigna. He recorded the case-diary statements of witnesses from 14th to 17th December, 2007. He received the X-ray report of complainant and spot-map prepared by Patwari on the basis of revenue record. He prepared the memorandum under Section 27 of the Evidence Act vide Exh. P-2 on the basis of information given by arrested accused Jagmohan about looted property and thereafter on production by accused Jagmohan he seized one currency note of Rs. 500/- wrapped in one white coloured handkerchief from accused by seizure memo (Exh. P-3). On 11th May, 2008, he arrested accused Jeewan Parihar by arrest memo (Exh. P-11) and on 14th May, 2008, he prepared the memorandum under Section 27 of the Evidence Act vide Exh. P-12 regarding the currency note of Rs. 500/-. He was also informed of the weapon of crime (country-made pistol) which was seized by Police Chirula, District Datia. He also recovered currency of Rs. 500/- on production by accused Jeewan by seizure memo (Exh. P-13). 12. Dr. G.L. Verma (P.W. 11) was posted in the District Hospital, Datia at the relevant time. He deposed that on 3rd October, 2007 he examined injured Shahid, son of Mansur Ali, resident of Village Choti Badoni, District Datia who was brought by Police Constable No. 60 Mahesh and on examination vide his report (Exh. P-8) he found (i) lacerated wound of size 3 cm. x 4 cm. up to bone deep on right palm medially; (ii) contusion of size 2 cm. x 2 cm. on right frontal head; and (iii) complaining pain on back and chest, but no external injury. As per the doctor, except injury No. (i) rest were simple and caused by hard and blunt object. On X-ray examination vide Exh. P-9, little fracture in fifth metacarpal bone in right hand was detected. This injury was grievous in nature caused by hard and blunt object. 13. Other witnesses Suraj Singh (P.W. 1) and Yogesh Bhargava (P.W. 2) have not supported the prosecution version hence were declared hostile. 14. Kalicharan Yadav (P.W. 3), in his statement deposed that police had seized currency note of Rs. 500/- in his presence from accused Jagmohan, but he denied to have been informed by the accused about the looted property in his presence, consequence of which the memorandum (Exh. 14. Kalicharan Yadav (P.W. 3), in his statement deposed that police had seized currency note of Rs. 500/- in his presence from accused Jagmohan, but he denied to have been informed by the accused about the looted property in his presence, consequence of which the memorandum (Exh. P-2) was prepared. Saheb Singh (P.W. 4), Constable posted in the Police Station, Jigna deposed that on 3rd October, 2007, Sub-Inspector Ajay Channa seized one motor bike bearing registration No. MP 07 CB 0693 from nearby road side of agricultural field vide seizure memo (Exh. P-4). Komal (P.W. 5), Mahadev (P.W. 6) and Kailash (P.W. 8), who were related to the identification of looted property turned hostile and they did not support the prosecution version. 15. In the statements of accused, it was pleaded that due to previous enmity with complainant, they had been falsely implicated and they had no connection at all. However, no defence witness was examined to prove their plea. 16. On perusal of the FIR, it is gathered that the same was lodged mentioning the identity of those unknown persons. It is also mentioned that the comers of looted property, viz., currency notes of Rs. 500/- which were wrapped in the handkerchief of white coloured with engraved number 786' on it, were partly oil soaked. 17. Now, the question that arises for consideration is as to whether the accused appeared before the Court alongwith an absconded accused robbed the complainant, as alleged? 18. As mentioned above, the complainant Shahid (P.W. 9) lodged the report against the miscreants who were not known by names or faces previously to the complainant. They reached on the spot on black coloured motor bike bearing registration No. MP 07 CB 0693. That motor bike used in incident was also recovered on the day of incident lying in abandoned state. The accused Jagmohan was arrested on 20th December, 2007 and he was identified before P.C. Niranjan (P.W. 10), Executive Magistrate-cum-Naib Tehsildar, Datia on 5th March, 2008 near about three months later from the date of arrest and no cogent reason was assigned for his delayed test identification. Another accused Jeewan was arrested on 12th December, 2005 after filing the charge-sheet. But no test identification parade was conducted for him. The complainant Shahid (P.W. 9) in his Court statement identified the accused in dock and also stated about the specific role in commission of incident. Another accused Jeewan was arrested on 12th December, 2005 after filing the charge-sheet. But no test identification parade was conducted for him. The complainant Shahid (P.W. 9) in his Court statement identified the accused in dock and also stated about the specific role in commission of incident. The belated identification parade in relation with accused Jagmohan and absence of test identification parade regarding another accused Jeewan will not help the prosecution for establishing the crime against the accused Jagmohan and Jeewan in the incident in question. At this juncture, it would be relevant to refer the decisions which proceeded on the point in issue as following:-- (i) Siddanki Ram Reddy Vs. State of Andhra Pradesh, (2010) 7 SCC 697 , at Page 703, wherein it has been observed as under:-- “23. This Court has held in Daya Singh Vs. State of Haryana cited by Mr. Reddy that the purpose of test identification is to have corroboration to the evidence of the eye-witnesses in the form of earlier identification and that the substantive evidence of a witness is the evidence in the Court and if that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. In the facts of the present case, a mob attacked the deceased in the crowded corridors of the Court of the Second Additional District Judge and P.W. 1, P.W. 5 and P.W. 6 in their evidence in the Court claim to have seen accused 1 (appellant) chasing the deceased with an axe and assaulting the deceased with the axe on his neck. All these three eyewitnesses have also stated that soon after the assault the appellant ran away from the Court premises. The three eye-witnesses thus saw the assailant for a very short time when he assaulted the deceased with the axe and thereafter when he made his escape from the Court premises. 24. When an attack is made on the injured/deceased by a mob in a crowded place and the eye-witnesses had little time to see the accused, the substantive evidence should be sufficiently corroborated by a test identification parade held soon after the occurrence and any delay in holding the test identification parade may be held to be fatal to the prosecution case. In Lal Singh Vs. State of U.P., this Court has held that:--(SCC p. 567, Para 28) 28. In Lal Singh Vs. State of U.P., this Court has held that:--(SCC p. 567, Para 28) 28. Where the witness had only a fleeting glimpse of the accused at the time of occurrence, delay in holding a test identification parade has to be viewed seriously.” (ii) In Daya Singh Vs. State of Haryana, (2001) 3 SCC 468 , at Page 478, the Hon'ble Apex Court held as follows:-- “13. The question, therefore, is--whether the evidence of injured eyewitnesses P.W. 37 and P.W. 38 is sufficient to connect the appellant with the crime beyond reasonable doubt. For this purpose, it is to be borne in mind that the purpose of test identification is to have corroboration to the evidence of the eye-witnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion -what in present-day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution. The purpose of identification parade is succinctly stated by this Court in State of Maharashtra Vs. Suresh as under:--(SCC p. 478, Para 22) 22. We remind ourselves that identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting a test identification parade is two-fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the Investigating Authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence'. (iii) In Lal Singh Vs. State of U.P., (2003) 12 SCC 554 , at page 566, the Hon'ble Apex Court observed as follows:-- “28. The next question is whether the prosecution has proved beyond reasonable doubt that the appellants are the real culprits. (iii) In Lal Singh Vs. State of U.P., (2003) 12 SCC 554 , at page 566, the Hon'ble Apex Court observed as follows:-- “28. The next question is whether the prosecution has proved beyond reasonable doubt that the appellants are the real culprits. The value to be attached to a test identification parade depends on the facts and circumstances of each case and no hard-and-fast rule can be laid down. The Court has to examine the facts of the case to find out whether there was sufficient opportunity for the witnesses to identify the accused. The Court has also to rule out the possibility of their having been shown to the witnesses before holding a test identification parade. Where there is an inordinate delay in holding a test identification parade, the Court must adopt a cautious approach so as to prevent miscarriage of justice. In cases of inordinate delay, it may be that the witnesses may forget the features of the accused put up for identification in the test identification parade. This, however, is not an absolute rule because it depends upon the facts of each case and the opportunity which the witnesses had to notice the features of the accused and the circumstances in which they had seen the accused committing the offence. Where the witness had only a fleeting glimpse of the accused at the time of occurrence, delay in holding a test identification parade has to be viewed seriously. Where, however, the Court is satisfied that the witnesses had ample opportunity of seeing the accused at the time of the commission of the offence and there is no chance of mistaken identity, delay in holding the test identification parade may not be held to be fatal. It all depends upon the facts and circumstances of each case.” 19. In view of the law analysed above, this Court has come to conclude that after a lapse of considerable time in case of total strangers the identification cannot be relied upon when the witness had only a fleeting glimpse of the person identified or had no particular reason to remember the person concerned. In view of the law analysed above, this Court has come to conclude that after a lapse of considerable time in case of total strangers the identification cannot be relied upon when the witness had only a fleeting glimpse of the person identified or had no particular reason to remember the person concerned. Whether the absence of a test identification parade makes the identification in the dock inadmissible or useless and whether such identification deserves credence depends on the facts and circumstances of each case but ordinarily identification of an accused by a witness for the first time in Court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. No doubt, the previous identification in the test identification parade is a check valve to the evidence of identification in Court of an accused by a witness and the same is a rule of prudence and not law. Therefore, where an accused is not named in the First Information Report, his identification by witnesses after inordinate delay, should not be relied upon, especially when they did not disclose name of the accused before the police. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of the evidence. It is accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings but where there is delay in conducting test identification parade, the Court has to be cautious in placing reliance on the evidence of the victim. 20. Now coming to the case, this Court finds that after arrest of accused Jeewan, the memorandum (Exh. P-12) regarding the looted property was prepared and on that ground the part of the looted property was recovered by seizure memo (Exh. P-13). That looted property was identified before witness Mahadev (P.W. 6) by complainant Shahid, but this witness turned hostile and did not support the identification parade proceedings (Exh. P-5) and more so the looted properties recovered from both accused were not produced for identification by the complainant during trial, therefore, the looted properties, viz., two currency notes each of Rs. P-13). That looted property was identified before witness Mahadev (P.W. 6) by complainant Shahid, but this witness turned hostile and did not support the identification parade proceedings (Exh. P-5) and more so the looted properties recovered from both accused were not produced for identification by the complainant during trial, therefore, the looted properties, viz., two currency notes each of Rs. 500/- and specified handkerchief could not be identified by the complainant. So, in the present case, the prosecution could neither prove the identity of accused nor property looted beyond doubts and except identification of person and property which are not proved beyond doubts nothing is on record which may involve the present accused/appellants in robbery of present incident with the complainant. 21. Resultantly, this appeal is allowed and the judgment of conviction and sentence under appeal is set aside and it is directed that the accused appellants who are in custody be released forthwith, if not required in any other case.