JUDGMENT Hon’ble Anil Kumar Sharma, J.—Challenge in this appeal is to the judgment and order dated 27.4.1987 passed by Sri Shyam Murti Sharma, the then Special Judge (DAAA), Agra in Special S.T. No. 181 of 1984 (State v. Aminia and others) whereby the appellants had been convicted for the offence punishable under Section 394 IPC and each had been sentenced to undergo two years’ rigorous imprisonment. 2. The facts germane to the appeal are that on 30.12.1979 complainant Bankey Lal Upadhyay submitted a written report in P. S. Firozabad (South), stating that at about 06:00 PM when he got down from Rikshaw at the railway crossing and inquired about the house of one Mahaveer Prasad Sharma, three boys met him and they offered to escort him to his house. The complainant paid fare to the Rikshaw puller and accompanied the boys towards the west of the railway crossing. After a while, on suspicion he inquired as to where they were taking him and when he tried to return back, all the three miscreants caught him and in the scuffle he slipped on the railway line and then one of the miscreants took out a knife and assaulted him on his head. His alarm attracted few persons including one Hundi Lal son of Badam Singh who came to his rescue and the accused persons snatched his Jhola and a wrist watch. It has been further noted in the report that the complainant can identify the assailants. Hundi Lal brought him to police out-post Railway Road and one constable took him to Hospital. After medical examination, the complainant submitted the report scribed by Rajendra Prasad Dubey as his spectacles was also robbed. The complainant has further noted in his report that the miscreants took away his Jhola containing spectacles with cover, Rs. 200/-, a book of M. A. Sociology, one Tahmad and a radio licence. On the basis of the report a case at crime No. 457 under Section 394 IPC against unknown persons was registered at the police station, investigation whereof was entrusted to the SI Ganga Singh. He interrogated the complainant and prepared the site plan after visiting the place of occurrence at his instance. During the investigation, accused Aminia (appellant No. 1) was arrested and his interrogation revealed the complicity of accused Kallu and Bhura. He interrogated the complainant and prepared the site plan after visiting the place of occurrence at his instance. During the investigation, accused Aminia (appellant No. 1) was arrested and his interrogation revealed the complicity of accused Kallu and Bhura. Ere that the complainant was medically examined by doctor Ram Kumar Gupta, in S. N. M. Hospital, Firozabad on 30.12.1979 at 07:35 PM and he found the following injuries on his person:- 1. Incised wound 4.5 cm x 0.5 cm x scalp deep on the occipital region 9 cm above from the right ear, bleeding present margin ear cut following downward capillary. 2. Incised wound 1 cm x 0.3 cm x scalp deep on the left side of nostril margin ear cut, bleeding present. 3. Abrasion 0.5 cm x 0.5 cm on the left side of right finger on middle phalanx. The accused persons were put up for test identification on 7.2.1980 in which all the three appellants were correctly identified by complainant Bankey Lal Upadhyay, Jagdish Prasad and Teja Ram. The investigation culminated into charge-sheet against the appellants. 3. The case was initially tried by Munsif Magistrate, Firozabad but after the commencement of the U.P. Dacoity Affected Areas Act, 1973 it was transferred to Special Judge (DAA), Agra who framed charge for the offence punishable under Section 394 IPC against the accused appellants who pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution had examined Dr. Ram Kumar Gupta PW-1, complainant Bankey Lal Upadhyay PW-2, scribe Rajendra Prasad PW-3, Jagdish Prasad PW-4 and SI Ganga Singh PW-5. 5. All the accused appellants in their separate statements under Section 313 Cr.P.C. had again denied the entire prosecution story and claimed false implication. However, they did not adduce any evidence either oral or documentary in their defence. The learned trial Court after hearing the parties’ counsel had convicted the accused appellants as stated in para-1 of the judgment. Aggrieved, the appellants have come up in appeal. 6. During the pendency of the appeal accused appellant No. 1, Aminia @ Amin Uddin, has died and a report to this effect dated 13.3.2014 has been sent by the Chief Judicial Magistrate, Agra. Therefore, appeal of the appellant No. 1 stands abated. 7. I have heard learned counsel for the accused appellants No. 2 and 3 and perused the record of the case carefully. 8. Therefore, appeal of the appellant No. 1 stands abated. 7. I have heard learned counsel for the accused appellants No. 2 and 3 and perused the record of the case carefully. 8. It has been argued by the counsel for the appellants that in the first information report no one was named as an accused; that the prosecution has not proved the link evidence regarding keeping the appellants Baparda till their test identification parade held in district jail on 7.2.1980 which is too remote in point of time; that the learned trial Court has itself not placed reliance on the testimony of Jagdish Prasad PW-4 as his name does not find place in the identification memo; that the other witnesses except the complainant are residents of the vicinity where the accused appellants reside, therefore, their identification of the accused appellants in the parade is of no consequence. Lastly, it has been submitted that the sentence awarded to each appellant is excessive and harsh. 9. Per contra, the learned AGA has supported the impugned judgment and findings recorded by the learned trial Court. It has been pointed out that the appellants were granted bail in the case before their test identification parade was held and at that time they gave an undertaking in the Court that they would conceal themselves from the prosecution witnesses and would not raise the plea during trial that they were shown to the witnesses. It has been lastly submitted that the formal proof of the identification memo dated 7.2.1980 has been dispensed with by the counsel for the accused appellants and therefore, now they cannot complain anything in this regard. 10. Before we proceed to analyse the evidence on record to appreciate the arguments advanced at the Bar, it would be in the fitness of things to narrate in brief the statements given by the prosecution witnesses in their examination in chief. 11. Dr. Ram Kumar Gupta PW-1 has deposed that on 30.12.1979 he was posted as Medical Officer in posted in S.N.M. Hospital, Firozabad and on that day at about 7:45 PM constable Sri Krishna Sharma brought injured Bankey Lal Upadhyay for medical examination to the hospital and he was medically examined by him. Dr. Gupta has proved the medical examination report of the complainant as Ext. Ka-1, contents whereof have been noted in para - 2 of the judgment. 12. Dr. Gupta has proved the medical examination report of the complainant as Ext. Ka-1, contents whereof have been noted in para - 2 of the judgment. 12. Complainant Bankey Lal Upadhyay PW-2 has stated that on 30.12.1979 at about 6:00 PM he was going to Labour Colony, Firozabad in search of a match for his daughter. When he reached the Railway Crossing in a rickshaw, he inquired from three young boys about the Labour Colony who assured him to escort to the house of Mahavir Prasad. He accompanied them after leaving the Rikshaw and they took him towards the west of the railway line; when he suspected he inquired as to where they are taking him and as he turned back, he was caught by one of the miscreants and in this process he slipped on the railway line and fell on the ground. The other boy gripped his mouth and the third one wielded knife on his head. His noise attracted several persons including one Hundi Lal and on seeing them, the miscreants made their scape good after snatching his wrist watch and a bag in which his spects with cover and Rs. 200/-, a book, a Tahmad and a radio licence were kept. He was taken to police station from where a constable took him to hospital for medical examination. As his spects were looted by the miscreants, he could not write the report and got it scribed through Rajendra Prasad Dubey, which has been proved as Ext. Ka-2. He has further stated that he has identified the miscreants in electric light at the railway crossing and had gone to jail for identifying them. He has identified accused Bhura and Kallu present in the Court and third accused Aminia was not present in the Court when his examination in chief was recorded in the trial Court. 13. Rajendra Prasad PW-3 has deposed that about 6-7 years ago he wrote down the report of the case on the dictation of complainant Bankey Lal Upadhyay, which was read over to him and thereafter, it was signed by the complainant. The witness has also identified his signature on the written report Ext. Ka-2. 14. Jagdish Prasad PW-4 has deposed that about six years ago at about 6:30 PM alongwith Hundi Lal he was returning from an election campaign of Smt. Sushila Devi who was contesting for the Member of Legislative Assembly. The witness has also identified his signature on the written report Ext. Ka-2. 14. Jagdish Prasad PW-4 has deposed that about six years ago at about 6:30 PM alongwith Hundi Lal he was returning from an election campaign of Smt. Sushila Devi who was contesting for the Member of Legislative Assembly. Near the railway line 4-5 persons were beating Bankey Lal and one of them ran away taking his bag. They also assaulted Bankey Lal with knife. He had seen the assailants at the spot and they were not known to him from before. He has further deposed that he has participated in the test identification parade held in the jail and had identified three accused namely Aminia, Kallu and Bhura present in the Court correctly. He has also identified his signature on the identification memo stating that he has seen the miscreants during the incident and not thereafter till the identification parade was held in the jail. 15. SI Ganga Singh PW-5 has stated that on 30.12.1979 he was posted as SI in PS Firozabad (South). On that day, the check report of this case on the basis of written report of the complainant was prepared by HC Gopal Prasad Gautam in his handwriting and he is acquainted with his signatures as well. He has proved the check report as Ext. Ka-3. He has further deposed that the investigation case was entrusted to him and he interrogated the complainant, Rajendra Prasad and Jagdish Prasad. He inspected the spot and prepared the site plan which has been proved as Ext. Ka-4. He has further stated that he got the test identification parade of the accused Aminia, Kallu and Bhura conducted in district jail Agra on 7.2.1980 and after concluding the investigation submitted the charge-sheet against them. 16. On perusal of the entire evidence on record it transpires that the complainant is not resident of the vicinity where the incident had taken place. He is resident of district Mathura, while the place of incident lies in the vicinity of P. S. Firozabad South which was earlier in Agra district and now it is part of district Firozabad. Admittedly no one is named in the FIR as an accused in the case. He is resident of district Mathura, while the place of incident lies in the vicinity of P. S. Firozabad South which was earlier in Agra district and now it is part of district Firozabad. Admittedly no one is named in the FIR as an accused in the case. Name of one eye-witness namely Hundi Lal had been noted in the written report of the complainant, but neither he participated in the test identification parade held on 7.2.1980, nor he has been produced before the trial Court. No adverse inference has been drawn by the learned trial Court for not joining Hundi Lal in the investigation because the investigating officer has not been cross-examined by the defence on this point nor any question was put to him by the State counsel. 17. Learned counsel for the appellants has laid much emphasis on the findings of the learned trial Court, where it has discarded the testimony of Jagdish Prasad PW-4 on the premise that his name does not find place in the written report of the complainant nor he has participated in the test identification parade. However, on close scrutiny of the record of the trial Court, we find that the findings of the trial Court in this regard are not correct and based on evidence on record. Jagdish Prasad has been examined as PW-4 in the case and he has categorically stated in his examination-in-chief that he had attended the test identification parade held in the jail premises and has correctly identified three miscreants. Not only this, he has also correctly identified all the three appellants in the Court by putting hand on each of them. He has specifically identified his signature on the back of test identification memo (14Aa/1). His further categorical statement is that he has not seen any miscreant between the date of incident and the test identification. It is very important to note that the formal proof of test identification report has been dispensed with by the learned counsel for the defence before the trial and that’s why the learned Magistrate who has prepared this report was not summoned. The name of Jagdish Prasad s/o Roshal Lal r/o Arya Nagar, Firozabad finds place at sl. No. 2 of the report after the name of Bankey Lal Upadhyay (complainant) and before Ramji Lal (sl. The name of Jagdish Prasad s/o Roshal Lal r/o Arya Nagar, Firozabad finds place at sl. No. 2 of the report after the name of Bankey Lal Upadhyay (complainant) and before Ramji Lal (sl. No. 3) This witness has signed the memo in column No. 11 against the corresponding entry of his name. The learned trial Court has totally misread this report. It is pertinent to note here that the learned defence counsel has not challenged the participation of Jagdish Prasad PW-4 in the test identification parade or his signature on test identification report Ex.Ka-7 during cross-examination. This shows that there was no confusion in the mind of the defence counsel that Jagdish Prasad PW-4 has participated in the test identification parade and has correctly identified all the three accused person. Further, without challenging the testimony of a witness on a particular point, his statement has to be accepted, therefore, in the instant case the findings of the learned trial Court based on misreading of the document i.e. test identification report,cannot be accepted and had to be out rightly rejected. 18. In this way, we have two witnesses namely complainant PW-1 and Jagdish Prasad PW-4, who have testified about the identification of the accused-appellants in the jail on 7.2.1980. The learned Magistrate has noted in the report that the accused persons who were put up for test identification namely the three appellants were on bail and the proceedings were attended by the learned APO on behalf of the State and learned counsel for the defence. Bankey Lal Upadhyay PW-1 has correctly identified accused Bhura and Kallu, while he committed mistake with regard to Aminia, thus the value of his identification is 66%, which is quite good. Jagdish Prasad PW-4 has correctly identified all the three accused-appellants without committing any mistake. He has also correctly identified the accused-appellants at the time of his examination in the Court. 19. The learned trial Court after appreciating the evidence on record has observed that at the time of incident it was not so dark that the complainant could not have identified the assailants. The manner of incident also show that the complainant has ample time and opportunity to see the faces of the miscreants and kept the same in his memory. The incident has not taken place all of a sudden. The manner of incident also show that the complainant has ample time and opportunity to see the faces of the miscreants and kept the same in his memory. The incident has not taken place all of a sudden. According to the complainant the accused persons met him at about 5.45-6.00 p.m. and on his enquiry they took him for the house of Mahavir Prasad and when they had gone about 250 metres by the side of the patri, on suspicion ran back side, one of the miscreants caught hold of him and then both of them fallen as his foot slipped. The incident had taken place just about dusk time, which is state or period of partial darkness between day and night or the dark part of twilight and at this moment it is not complete dark in which no one can see and recognize any person who is in close proximity. The sequence of events leading to the incident as narrated by the complainant clearly show that he had sufficient light, full opportunity to see and memorize the faces of the miscreants correctly. The complainant has denied vague suggestions given to him at the end of his cross-examination that he had seen the accused in the police station with the help of the police or that he had viewed their photographs before identification parade was held. Suffice it to say that admittedly at the time of test identification, all the accused were on bail and they had given an undertaking that they would conceal themselves from the prosecution witnesses and would not raise the plea during trial that they were shown to the witnesses. Similar is the position with regard to keeping the accused bapardah. The remand-sheet (under Section 167 Cr.P.C.) pertaining to accused Bhura available on record shows that he was sent to jail bapardah and released on bail on 17.1.1980. Similar is the position with regard to keeping the accused bapardah. The remand-sheet (under Section 167 Cr.P.C.) pertaining to accused Bhura available on record shows that he was sent to jail bapardah and released on bail on 17.1.1980. In this connection following observations of the learned trial Court are important: ^^tgkW rd vfHk;qDrx.k dks fxjQ~rkjh ds ckn dk;Zokgh 'kuk[r ds le; rd ckinkZ j[kus dk iz'u gS] vfHkys[k ij is'k nLrkosth lk{; fo+}ku vfHk;kstu vf/kdkjh ds bl rdZ dk leFkZu djrh gS fd lHkh vfHk;qDrx.k dk;Zokgh 'kuk[r ls iwoZ tekur ij fjgk gks pqds Fks vkj mu lHkh us ,d fyf[kr vaMj Vsfdax bl vej dh is'k dh gS fd og vius dks vfHk;kstu lk{khx.k ls cpkdj j[ksxsa vkSj nkSjku ijh{k.k bl vej dh dksbZ Iyh ugha ysaxsA vr% izLrqr dsl esa vfHk;kstu i{k ds fy, bl vej dh lk{; is'k djuk vko';d ugha Fkk fd vfHk;qDrx.k dks fxjQ~rkjh ds rqjar ckn ls dk;Zokgh 'kuk[r gksus rd fu;ekuqlkj ckinkZ j[kk x;k vkSj fdlh Hkh vfHk;kstu lk{khx.k dks mUgsa dk;Zokgh 'kuk[r ls iwoZ ns[us dk ekSdk ugha feykA** In view of the above categorical findings based on evidence on record, all the contrary arguments challenging the proceedings of test identification parade or that the accused were known to the witnesses or they or their photographs were shown to them have become meaningless. 20. The identification parades belong to the investigation stage and they serve to provide the investigating authority with materials to assure themselves if the investigation is proceeding on right lines. In other words, through these identification parades the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits or not ? 21. Highlighting the importance of test identification parade in criminal trial the Apex Court, in the case of Amitsingh Bhikamsing Thakur v. State of Maharashtra, JT 2007 (1) SC 390, decided on 5 January, 2007 has observed as under: “The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code of Criminal Procedure, 1973 (in short the ‘Code’) and the Indian Evidence Act, 1872 (in short the ‘Evidence Act’). It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well-settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that 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. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that 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. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration.....” In this view of the matter as well the evidence with regard to identification of the accused-appellant through PW-1 and PW-4 is quite cogent, clear and reliable. 22. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration.....” In this view of the matter as well the evidence with regard to identification of the accused-appellant through PW-1 and PW-4 is quite cogent, clear and reliable. 22. In view of the peculiar and distinguished facts of the instant case, the following case-laws relied upon by the learned counsel for the accused-appellants have no application and do not help them at all: (i) Siddanki Ram Reddy v. State of A.P., 2010(3) JIC 175 (SC), the accused was seen by the witness when he was produced for remand; (ii) Ayub v. State of U.P., 2011 (2) JIC 363 (All), accused persons were shown to the witnesses prior to test identification parade and they failed to give any affirmative substantive evidence identifying the accused persons in Court; (iii) Bhanoo and others v. State of U.P., 2012 (3) JIC 526 (All) (LB), the accused persons were previously known to some of prosecution witnesses and there were material contradictions in the statement of PWs; (iv) Ganga Ram and others v. State of U.P., 2012 (1) JIC 329 (All), the fact that in the middest of the scuffle and brawl the veil to the miscreant got untied so as to pave way to the witness to see and identify him at the time of incident; (v) Mahima and another v. State of U.P., 2010(1) JIC 563 (All), no evidence was led that the accused were kept bapardah, hence solitary evidence of identification was not found sufficient to substantiate the prosecution case; (vi) Ram Singh v. State of U.P., 2013(3) JIC 485 (All), some accused persons were well known to the witnesses, hence test identification parade was not accepted; (vii) Narendra Singh @ Nanga v. State of U.P., 2013(3) JIC 808 (All), significant contradictions were found in the oral testimony of all three PWs, who were close relatives and no independent witness was examined though the incident occurred in densly populated area. 23. The place of incident as depicted in the site plan by the investigating officer has been amply proved by the complainant in his deposition before the trial Court. The complainant was an outsider to the place of incident as also to the accused-appellants. 23. The place of incident as depicted in the site plan by the investigating officer has been amply proved by the complainant in his deposition before the trial Court. The complainant was an outsider to the place of incident as also to the accused-appellants. He has no animus to falsely identify any of the accused. Similar is the position with regard to Jagdish Prasad PW-4. Although he resides in the nearby situated Arya Nagar and the accused-appellants are residents of Labour Colony, but the defence has not been able to demonstrate that he had any axe to grind with any of the accused-appellant. 24. It is important to note that as none of the accused-appellant was known to the complainant from before and that’s why no one was named in the FIR, so the complainant or the witness were not in a position to assign specific role to any particular accused. Since the case is based on identification of the accused by the victim and eye-witnesses, so non-recovery of any looted article from the accused would not shake the prosecution story with regard to complicity of the accused-appellants in the incident. In view of aforestated discussion we find that although the learned trial Court has erroneously discarded the testimony of Jagdish Prasad PW-4, but the accused-appellants have been rightly found guilty for the offence punishable under Section 394 IPC. 25. Learned counsel for the appellants has vehemently argued that incident had taken place more than 34 years ago, so it would not proper to send the appellants to serve out the custodial sentence. In this connection he has placed reliance on the cases of State of U.P. v. Nathu and others, 2014 (1) JIC 744 (All) and Ram Kumar and others v. State of U.P., 2012(2) JIC 294 (All). In the former case in an appeal under Section 378 Cr. P. C. against acquittal of the respondents for the offence punishable under Section 307 IPC, almost with the consent of the counsel for the accused-respondents, the impugned judgment acquitting the respondents was set aside and the accused were convicted under Section 324 IPC and sentenced to period of imprisonment already under gone and fine of Rs. 20,000/- each. The Court considered the fact that the incident had taken place about 32 years ago so no useful purpose would be served by sending the respondents to jail. 20,000/- each. The Court considered the fact that the incident had taken place about 32 years ago so no useful purpose would be served by sending the respondents to jail. In the later case, the accused were found guilty for the offence punishable under Section 395/412 IPC and were sentenced to seven years RI under Section 395 IPC and and 3-years’ RI under Section 412 IPC. One of the appellant was found to be about 90-years’ old and considering the fact that the incident took place more than thirty three years ago, the sentence of the accused persons was reduced to already under gone. Accused Kallu and Bhura had given their age as 22 and 23 years respectively on 9.3.1987 when their statements under Section 313 Cr. P.C. was recorded by the Court below. Adding the period passed by interregnum, they must be around 49-50 years only. No other criminal history of the accused-appellants No. 2 and 3 had been alleged by the prosecution, therefore, it would be expedient in the interest of justice to reduce the sentence of rigorous imprisonment of two years to already under gone by each of them with fine of Rs. 8,000/- each. 26. In view of the afore stated reasons, the appeal of appellants No. 2 and 3 is partly allowed. Their conviction under Section 394 IPC is maintained but the sentence of two years’ rigorous imprisonment is substituted by period of imprisonment already gone by them with fine of Rs. 8,000/- each to be paid within a month from today. In default of payment of fine, each appellants No. 2 and 3 would serve four months’ imprisonment. Let copy of the judgment be transmitted to the Court concerned for compliance immediately for ensuring compliance, which should be communicated to the Court within 8-weeks. —————