Kedari and Another vs State of U.P.

R.A. Misra, J.—The accused Kedari and Chhatrapal have preferred this appeal against the judgment and order dated 25tb April 1978 passed by Vth Additional Sessions Judge, Moradabad convicting them u/s 395 IPC and sentencing each on of them to undergo RI for a period of five years. The only evidence to implicate the accused in this crime is that of identification. It so appears that the accused Kedari was arrested on 14th of June 1976 and was put up for identification in the District Jail Moradabad on 21st of June and has been correctly identified by Budhi (PW 2) Tara Chand (PW 4) and Man Singh (PW 7). The accused Chhatrapal was arrested on 3rd of July 1976 and put up for identification in the District Jail of Moradabad on 20th of July 1976. He has been correctly identified by Bhudeo (PWJ) Budhi (PW 4) and Man Singh (PW 7). The Executive Magistrates who conducted the test identification parades'' have not been examined by the court below and the genuineness of the identification memo has not been admitted by the defence, with the result the identification memos on the record not having been proved, cannot be read in evidence. The learned Sessions. Judge has grievously erred in placing reliance on these test identification memos. No reliance can be placed on these memos for convicting the accused Appellants unless and until either the Magistrate is produced to prove them or the defence admits their genuineness. As I have mentioned above neither the Magistrate has been produced to prove these memos nor has the defence admitted their genuineness. The conviction of the Appellants on the basis of these memos is bad in law and the finding of the court below on the basis of these memos that the accused have been correctly identified by the witnesses in the test identification is bad in law and cannot be upheld.

No one has appeared for the Appellants since yesterday. I have however gone through the record with care and heard learned Counsel for the State.

It has been argued by the learned Counsel for the State that under the prevailing circumstances Magistrates should be summoned in this Court and examined to prove the identification memos. The learned Counsel for the prosecution has not been able to give any reason as to why the prosecution failed to produce the Magistrates in the court below. There is nothing on the record to show that the learned Sessions Judge did not afford sufficient opportunity to the prosecution to produce the Magistrates. It is not possible to summon and examine witnesses at this stage simply to fill up the lacuna In the prosecution evidence moreso when the prosecution had ample opportunity to produce the evidence and has not been able to give any reason for not having produced the same in the court below. I, therefore, find no justification in the present case to summon the Magistrates at this stage.

Bhudeo (PW 1) says that the dacoits were about 12 in number and they committed dacoity in the houses of Gariba, Net Ram, Budhi, Reshan, Hori Lal and Man Mngh. Budhi (PW 4) says that dacoits committed dacoity in his house also. Tara Chand (PW 2) also says that the dacoits committed dacoity in his house also. Man Singh (PW 7) does not say that the dacoits committed dacoity in his house though Budhi (PW 1) says so. He simply says that he woke up on hearing the noise and found the dacoits committing dacoity in his village. He does not say as to where he took his position at that time and from where he actually saw the dacoits committing dacoity in different houses. It is not possible to believe him that he had taken his position at such a place from where he could see the faces and features of the dacoits who were committing dacoity in different houses and that sufficient light was available to him for the same. Budhai (PW 1) admits that the main doors of the houses of other victims were not visible from his house. He therefore could not see the faces and features of the dacoits while they were committing dacoity in other houses. All these witnesses say that the dacoits commits dacoity in the village for about an hour or one hour and a quarter but they do not say as to for how much time the dacoits remained in each house to show as to for how much time each witness got an opportunity to see the faces and features of the dacoits. Budhi (PW 4) simply says that the accused remained in his house in all for about 10 to 15 minutes. Having gone through the evidence on record and heard the learned Counsel for the State I have no hesitation in arriving at the conclusion that the prosecution has failed to prove beyond doubt that Budhai, Tara Chand, Budhi and Man Singh got sufficient opportunity to see the faces and features of the dacoits so as to be able to identify them subsequently. In the result there is no reliable evidence on the record to prove that the accused committed the dacoity. They have been wrongly convicted and sentenced by the court below. The appeal shall therefore be allowed.

The appeal Is allowed. The conviction and sentence passed against the accused Appellants Kedarl and Chhatrapal is set aside. They are on bail. Their bail bonds are discharged. They need not surrender.