GOYAL, J. - (1.) BOTH the appeal against their conviction and sentence under Section 395 IPC were filed by the accused appellants Lal Singh and Ajit Singh. As usual the prosecution case begins with the first information report ex. P. 3. Briefly speaking, the prosecution case is that P. W. 2 Shri Vikram singh, the victim of this occurrence, lodged written report Ex. P. 3 at Policy Station Mundawar, district Alwar at about 7. 40 p. m. on 15. 2. 96 with the averments that he was preparing his meals in a room at the petrol pump situated near village Mundawar. Three unknown persons respectively armed with revolver, knife and saria entered the room at about 7-20 to 7-30 p. m. , surrounded him and asked for key of cash box. On account of fear, he handed-over the key and the 4th person took away Rs. 26,000/- from that box. All the accused person went away alongwith two containers of oil and telephone instrument. Before leaving the place he was confined to the room and the show room was also shut from the out side. Thereafter they left by a maruti Car. In the meantime, he pulled the door and came out. On hearing his hue and cry one Ram Swaroop came and threw stones towards the car. Formal F. I. R. Ex. P. 4 was registered under Section 392 IPC. After investigation two accused persons Ram Avtar and Ajit Singh were charge sheeted under Section 395 IPC and investigation against the remaining four accused persons including accused appellant Lal Singh was kept pending as provided under Section 173 (8) Cr. P. C. Subsequently, additional charge sheet was filed against the accused appellant Lal Singh. It is also stated here that the accused Ram Avtar was released on bail by learned Judicial Magistrate, Narnol in some other case and thereafter the accused Ramavtar did not appear in the Court. Hence trial commenced only against both the accused appellants.
(2.) CHARGE under Section 395 IPC was read over to the accused appellants. They pleaded not guilty and claimed trial. During trial the prosecution examined as many as eleven witnesses. The accused appellants were examined as provided under Sec. 313 Cr. P. C. They denied the prosecution evidence. The accused appellant Ajit Singh stated that he was admitted in the hospital and the S. H. O. came to him alongwith Vikram Singh and demanded a sum of Rs. 15,000/- from him but he expressed his inability to pay the amount. Therefore he was taken to the petrol pump and was shown to the witnesses. After hearing learned counsel for the parties the learned Additional Sessions Judge No. 2, Kishangarh Bas, district Alwar, convicted and sentenced both the accused appellants under Section 395 IPC to undergo five years R. I. and a fine of Rs. 1,000/- and in default six month's R. I. Feeling aggrieved against this judgment, both the accused appellants filed separate appeals. I have heard learned counsel for the accused appellants and learned Public Prosecutor and gone through the entire evidence. The offence of robbery has been defined under Sec. 390 IPC. According to Section 391 IPC when five or more persons conjointly, commit or attempt to commit a robbery, it amounts to the "dacoity" and punishment for the said offence is provided under Sec. 395 IPC. Learned Amicus Curiae contended that the only evidence against the accused appellant lal Singh is that of identification which took place more than four months after the occurrence and, therefore, the conviction was not safe only on such evidence. Learned counsel referred the evidence of P. W. 2 Vikram Singh and contended that he was not in a position to see and identify the accused appellants and there is no corroboration of the statement of PW. 2 Vikram Singh. Reliance is placed on the judgment of this Court delivered in State of Rajasthan vs. Bhagirath (1 ). Learned counsel for the accused appellant Ajit singh also raised the similar contention. He further contended that according to Ex. P. 8 arrest memo of accused appellant Ajit Singh, he was having a number of injuries and PW 6 Sh. Satish Chandra Kaushik, Judicial Magistrate, (as he then was), who conducted the identification parade, stated in cross-examination that accused Ajit Singh was not in a position to make movement and thus it was necessary for the prosecution to explain as to how and under what circumstances this accused appellant was brought to the Court. It was also contended that at the time of identification parade, the accused appellants specifically stated before the concerned Magistrate, that they and their photos were shown to the witnesses and, therefore, the evidence of identification of the accused appellant does not inspite any confidence. It was also argued that the evidence of identification is not reliable on account of delay. Reliance is placed upon Bali Ahir and Others vs. State of Bihar It was also contended that the S. H. O. has falsely implicated the accused appellant Ajit Singh. Learned Public Prosecutor contended that there is no reason to disbelieve the evidence of PW 2 Vikram Singh as he was having no enmity with the accused appellant and according to the F. I. R. and the statement of Vikram singh, none other than Vikram Singh was present at the place of occurrence. it was also contended that PW 3 Chet Ram, P. W. 4 Ram Swaroop and P. W. 9 Mam Chand came to the place of occurrence at the time when the accused appellants alongwith other four accused persons were running from the place of occurrence in a car and thus according to the statement of these three witnesses also, it is proved that such incident did take place as stated by P. W. 2 Vikram Singh. I have given my thoughtful consideration to the rival submissions. No doubt, the only evidence against the appellants is that of identification. However, according to the prosecution case one `katta' (fire-arm) is said to be recovered at the instance of accused appellant Lal singh but that evidence was not relied upon by the learned trial Judge and rightly so because according to the version of PW 2 Vikram singh given during trial, the accused Lal Singh was armed with a saria and not a katta. Now the important question which arises for consideration is whether it was safe to place reliance upon the evidence of identification? According to the prosecution case this incident took place in a room at the petrol pump at about 7. 30 p. m. on 15th February 1997 and the F. I. R. Ex. P. 3 was lodged immediately thereafter at 7. 40 p. m. It is also important to say here that there was no enmity between the informant vikram Singh and the accused appellants. Although in the statements under Section 313 Cr. P. C. both the accused appellants stated that the witnesses deposed against them on account of enmity but no such particulars of enmity have been narrated and the accused appellants did not lead any evidence in defence. Further the contention of learned counsel Shri Biri singh that the S. H. O. falsely implicated accused appellant Ajit Singh has got no basis in absence of any specific averments of accused appellant Ajit Singh. Even no such suggestion was given to PW 11 Shyam Singh the then S. H. O. Police Station Mundawar, who investigated this case. Similarly this contention also has got no force that it was not explained as to how the accused appellant Ajit Singh was brought to the Court in an injured condition. No doubt, the accused appellant Ajit Singh was having a number of injuries at the time of arrest according to his arrest memo, but no such question was asked to investigation officer in this regard. it is also significant to say that according to the arrest memo Ex. P. 8 the accused appellant Ajit Singh disclosed to the investigating officer at the time of his arrest that he got these injuries in a quarrel which took place on 28. 3. 97, but that quarrel was not related with this incident. The main grievance is that PW 2 vikram Singh was not in a position to see and identify the accused appellants as he himself admitted in cross- examination that at the time of incident his head was down on account of fear and secondly there was no light at the place of occurrence. PW. 2 Vikram Singh no doubt admitted in cross- examination that he was afraid of the accused persons and at their instance he got his head down but the specifically stated that prior to that he saw the accused appellants when they entered the room and demanded key of the cash box and thereafter the 4th accused took away Rs. 26,000/- from the cash box. Therefore, it is clear that Vikram Singh got his head down subsequently and, therefore, this contention can not be accepted that PW 2, Vikram Singh was having no occasion to see the accused appellants. Second contention regarding darkness is also not acceptable because PW 2 Vikram Singh specifically stated that there was light in the room when he was preparing his meals. This fact was corroborated by PW. 3 Chet Ram and PW 9 Mam Chand. Learned trial Judge has also given a cogent reason on this point that PW. 2 Vikram Singh was preparing the meals at the time and, therefore, his statement that there was light is acceptable. therefore, the statement of informant PW 2 Vikram Singh that he saw the accused appellants in the room is wholly reliable. Now the evidence of identification has to be considered Ex. P 8 is the arrest memo of accused appellant Ajit Singh. According t this document he was arrested on 7. 4. 1997. The accused appellant Lal Singh was arrested on 13. 6. 1997 vide Arrest Memo Ex. P. 15. According to the statement of P. W. 6, Shri Satish Chandra Kaushik, who was posted as judicial Magistrate at kishangarh at that time, applications Ex. P. 9 and 12 were presented before him respectively on 12. 4. 1997 and 20. 6. 97 for conducting the identification proceedings for both the accused appellants. therefore, he issued summons to witnesses and identification of accused appellant Ajit Singh was conducted on 15. 4. 97, vide identification memo Ex. P. 5 and identification of accused appellant Lal Singh was conducted on 20. 6. 1997 vide identification Memo Ex. P. 6. Both the accused appellants were identified by Vikram Singh but the remaining witnesses Chet Ram and Ram Swaroop failed to identify the accused appellants. Thus the identification of the accused appellant Ajit Singh took place after two months of the incident while the identification of accused appellant Lal Singh took place after a period of more than four months but only on this count this evidence can not be discarded. The facts and circumstances of the case of State of Rajasthan vs. Bhagirath (supra) were also quite different as it was an appeal against acquittal and it was held that the sole witness who identified the accused did not disclose the name or features of accused prior to such identification parade. But there is this case the informant Vikram Singh specifically stated before the trial court that the age of the accused persons was about 30 years and they were present in the room for about five to ten minutes PW 3 Chetram, PW 4 Ram Swaroop and PW 9 mam Chand also corroborated the above statement of PW. 2 Vikram Singh and the age of both the accused appellants was about 30 years at the time of occurrence. Similarly the facts and circumstances of bali Ahir's case (supra) were quite different as the witnesses (police Officials) who came to identify the accused had seen the accused from behind while escaping and the Officer, victim of offence, knew one of the accused from before yet he did not name him in the F. I. R. and went to identify him when he fully knew him and identification of two of the accused took place after a gap of four days after their arrest without any explanation, but in the instant case the informant P. W. 2 Vikram Singh specifically stated that the accused appellants remained present in the room for about 5 to 10 minutes and he saw them and thus statement of Vikram Singh appeals to be wholly reliable that he identified both the accused appellants during the identification parade. The only suggestion given to Vikram Singh in cross-examination was that Police came alongwith accused appellant Ajit Singh at petrol pump and he saw the accused appellant there and thereafter he was taken to jail of identification. This suggestion was denied by Vikram Singh. No such suggestion was given to this effect that photographs of accused appellants were shown to him prior to identification parade. The deposition of Vikram Singh regarding identification in jail before the Judicial Magistrate finds corroboration from the statement of P. W. 6 Shri Satish Chandra kaushik and on perusal of the evidence given by him it is clear that he took every precaution in conducting the identification proceedings in an appropriate way. No doubt, PW. 6 Shri Kaushik stated that both the accused appellants informed him that their photographs were taken and they were shown to the witnesses prior to identification proceedings but the learned trial Judge rightly disbelieved this story put up by both the accused appellants. It is significant to say that PW. 11 Shyam Singh clearly stated that both the accused appellants were not shown to any of the witnesses and every precaution was taken to cover their faces and these facts were stated no only in the arrest memo but in the application for remand also. He specifically denied in cross- examination that the accused appellants or their photographs were shown to the witnesses and there is no reason to disbelieve this evidence. This, it was well proved that both the accused appellants were seen by P. W. 2 Vikram Singh at the place of occurrence and he subsequently identified both the accused appellants during the identification proceedings and he also identified both the accused appellants during trial and there is no jurisdiction to discard the prosecution evidence on this point. Thus the learned trial Judge has rightly relied upon this evidence. As far as the point of sentence is concerned, keeping in view the offence of dacoity at a petrol pump, the sentence awarded by the learned trial Judge does not appear to be unreasonable in any way. learned Amicus Curiae rightly pointed out that accused Lal Singh has already served the sentence. thus both the appeals, having no merit, are hereby dismissed. The conviction and sentence awarded to both the accused appellants under Section 395 IPC are hereby confirmed. The accused appellant Lal Singh has already served the sentence awarded by the trial court, therefore, he is not required to surrender. His bail bonds are discharged. The learned trial Judge shall get the accused appellant ajit Singh arrested to serve out the remaining sentence. Record of the trial Court be returned within a week form today alongwith copy of this judgment. .;