Bapna Actg. , C. J. - (1.) THE appellant Hebatsingh s/o Lachhman Singh Rajput of Segana, Tehsil Jalore, has been convicted by the learned Sessions Judge of Balotra for an offence under sec. 394 I. P. C. and sentenced to four years' rigorous imprisonment and a fine of Rs. 200/- in default to undergo six months' further rigorous imprisonment.
(2.) THE case for the prosecution is that on 1st September 1950 four persons on two camels committed three robberies in the jungle between the villages Manglawa and Bhundwa an hour before sun-set. First of all they way-laid Shyam Singh and his daughter Mst. Kanku. THEy were proceeding from Manglawa to Bhundwa. Shyam Singh was belaboured with lathis and thereafter his daughter Kanku was relieved of her ornaments. Near about that place, three persons, Trilokchand, Harakh Chand and Manakchand, who were residents of Manglawa, were going from Bhundwa to their village and the same robbers threatened to attack them and on account of fear no resistance was offered while the strangers robbed Trilokchand of his jhelas, and Harakhchand of Rs. 40/15/- which were in his pocket. At some distance from this place was Khima grazing his camel. THE strangers gave a lathi blow to Khima and took away the she-camel. THE first and the third were reported by Son Singh at Police-Station Babhatra at about 11 P. M. and these reports are Ex. P-l and Ex. P-2. THE second incident was reported by Manakchand at the same Police Station on the 3rd of September. In all these reports it was mentioned that the robbers were unknown persons. During the course of investigation, Hebat Singh was arrested in connection with some other case and the case for the prosecution is that he was one of the four persons concerned in these crimes. Three separate challans were produced but at the trial all the three charges were tried together. THE accused denied the charge and attributed the prosecution to his enmity with Amba who was related to Son Singh. THE trial resulted in his conviction and sentence as aforesaid. The case for the prosecution rests on the identification of the accused in Court and learned counsel for the appellant has challenged the finding of the learned Sessions Judge on the ground that the identification in Court was a very weak evidence in a case of this nature and should not form the basis of conviction. No stolen property was recovered from the accused though the she-camel of Khima was later found grazing in the jungle and produced by Khima himself in the police. The entire testimony against the accused consists of his identification in Court (i) by Shyam Singh P. W. 9 and Mst. Kanku P. W. , 4 in respect of the incident of robbery of Mst. Kanku, (ii) by Trilokchand P. W. 6, Harakhchand P. W. 7 and Manakchand P. W. 8 in respect of the robbery of Trilokchand and Harakhchand, and (iii) by Khima P. W. 5 in respect of the robbery of Khima. Of these Trilokchand, Harakhchand, Manakchand and Shyam Singh have made a statement that they identified the accused also at a parade during the course of investigation. A memo of the identification parade is also on the file of the committing Magistrate but it is curious that the Magistrate before whom the identification parade was held was neither produced in the Court of the committing Magistrate not before the Court of Session. In that memo of identification parade there is also the statement of the accused that the Sub-Inspector had got him identified by the witnesses prior to the identification parade. Since the occurrence was at a time when there was still some day light, it can be presumed that the victims were in a position to identify the robbers. But identification in Court long after the incident is of little value in a case where the wrong-doers are strangers and unknown to the victims at the time of the incident and it is necessary that some corroboration be available in order to bring home the guilt to the accused. The corroboration which can be expected is by an identification parade to be held soon after the arrest of the suspected person and under circumstances which do not give an opportunity to the witnesses to see the accused before the parade is held. In the present case the arrest of the accused is shown to be on 20th or 21st December 1950 in the challan and the Sub-Inspector has also stated that the accused was arrested on the 21st of December 1950. This is, however, incorrect as the memo of identification parade bears the date of 25th October 1950. Learned Assistant Government Advocate after a perusal of the case diary made a statement that the accused was arrested in some other case on the 6th October and on questioning he admitted his complicity in these offences whereafter his formal arrest took place on the 20th or 21st December 1950. If we take this statement as correct it would appear that although the miscreants concerned in the three offences were unknown persons and remained so during the course of investigation for some time, the police by some stroke of fortune came to arrest this accused and by a piece of equal good luck he admitted his complicity in these crimes. If this were so, the least that one would expect would be that the police would at once take steps against his being seen by witnesses before holding an identification parade for which also steps were to be taken as early as possible. All that can be found from the memo of identification parade is that it was held on the 25th October 1950 and on that occasion the accused complained to the Officer holding the parade that the police had arranged previously for the witnesses to see him. Mr. Abdul Hafiz Beg, Tehsildar Jalore, who conducted the identification proceedings, was not produced in the Court of the committing Magistrate or in the Court of Session and no reasons appear on the record why he was not produced. There is also no evidence of the Investigation Officer or the officer who came across the accused on the 6th of October as to what steps were taken to screen the accused against being seen by the witnesses prior to their identification before a Magistrate. The fact of the identification in a parade is by itself not substantive evidence but is admissible under sec. 9 of the Evidence Act and provides a strong corroboration, to the identification made in Court. But in the absence of any evidence to that effect the identification in Court is, as stated above of little value. In the circumstances of this case, the case against the accused is not free from reasonable doubt, benefit whereof will go to the accused. The appeal is accepted and the conviction and sentence passed against the accused by the Sessions Judge, Balotra, on 30th June 1952 is set aside. The accused will be set at liberty if not required in any other case. . ;