G.K. Sharma, J. - (1.) This appeal is directed against the judgment dated 8.2.79, by which, the Addl. Sessions Judge No. 2, Dholpur, acquitted the respondents of the charges under sections 395, 396 & 365, IPC.
(2.) According to the prosecution story, on the intervening night of 26th & 27th July, 76, Mojiram, along with his wife and children, was sleeping in the verandah of his house, when at about 11PM, 10-11 dacoits armed with guns, Pachphers and axes came there and started beating his wife and niece. A lantern was burning in the verandah. Hearing their noise, villagers Mokamsingh, Tikamsingh. Maharajasingh, Omprakash, Ranisingh and Jawahar came there with torches in their hands. The dacoits thereupon fired at them and gave beating to a number of persons and snatched away ornaments. The dacoits were alleged identified in the torch-light. Mokamsingh also put on fire some woods lying nearby, which created sufficient light to identify the dacoits. On this report, a case under sections 395, 397 & 365, IPC, was registered. After usual investigation, a challan was filed in the court of Judicial Magistrate, Etmadpur (Agra), from where, the case was transferred under the orders of Supreme Court to the jurisdiction of Dholpur in Rajasthan. The case was tried by the Addl. Sessions Judge No. 2, Dholpur, who framed charges against the accused persons under sections 395, 397 & 365, IPC, who pleaded not guilty and claimed trial. The learned trial judge, after the trial, did not find the accused persons guilty of the charges levelled against them and so, be acquitted them of all the charges.
(3.) The learned counsel for the respondent submitted that this is a case which has been tried by the Addl. Sessions Judge No. 2, Dholpur under the orders of the Supreme Court. The dacoity had taken place at Gadi Sebzad, PS- Berhan, Agra, in U P. The Government of India organised a ceremony and persuaded the dacoits to surrender before the police; and in that case, the Government would try to rehabilitate the dacoits. Under that scheme, both the accused persons surrendered before the police; Harvilas on 29th Aug.,76, and Ramlakhan on 11th Oct.,76. After their surrender, they were prosecuted, and their trial commenced in Rajasthan. It was argued that the trial court acquitted the appellants on the ground that the identification-parade of the accused persons was belated. The court observed that in the torch-light, lantern or by burning of wood, it was not possible to identify the dacoits. It was also observed by the trial court that during identification-parade, the witnesses had committed some mistake, and on account of that fact, according to the trial court, it was by chance that the witnesses identified the accused persons. So, it did not believe the identification of the accused persons. It was also held by the trial court that while conducting the identification-parade of the accused persons, the police had not taken the precautions. which were necessary, nor were they kept Ba-Parda before the identification-parade has no value. It was further held by the trial court that prior to their identification-parade, the accused persons were shown to the witnesses. So, the trial court, on the basis of all these aspects, did not believe the identification of the accused persons and acquitted them.;