WANCHOO, C. J. - (1.) THIS is an appeal by Dhokal Singh and Narain who have been convicted and sentenced under sec. 395 I. P. C. by the Additional Sessions Judge, Churu.
(2.) THE case relates to a dacoity which took place in village Rajedu on the 6th August, 1949, at about 5 P. M. It is said that six dacoits who were riding on four camels came to the village and invaded the house of Hariram Mahajan. Four of the dacoits were armed with guns,, and the remaining two with a spear and a lathi. THEy gave beating to Hariram and his wife, and looted Hariram's house and also that of his brother Sheonarain, and removed cash, ornaments, clothes etc. THE matter was reported by Hariram at police station Bapou ; but as the dacoits were not known we do not find any mention of their names in that report. It is said that during the course of the investigation, the police came to know the names of the six dacoits through an informer. THEreafter, there was an encounter between a party of dacoits and the police in Metra Tehsil on the 16th August, 1949. In that encounter, one Bagla was killed while Narain appellant was arrested along two others. Dhokal Singh was later arrested in connection with another dacoity case of Nagaur District. Eventually these two appellants were prosecuted and tried before the Additional Sessions Judge, Churu, who has convicted both of them. There is no doubt, after the perusal of the statements of various witnesses of village Rajedu, that there was a dacoity in the after-noon of 6th August, 1949, at the house of Hariram and Sheonarain in which a good deal of their property was taken away. A list of the looted property was given to the police. There is also no doubt that there was an encounter between the police and some dacoits on the 16th August, 1949, and at that time some property was recovered which was believed to be looted property. Out of this property, Hariram and Sheonarain have picked out certain property as theirs, though it must be added that no attempt was made to hold a regular identification of the property in this case. However, the recovery of the property, even if it be accepted, merely suggests that some of that party with which the police had an encounter on the 16th August, 1949, might have been concerned in the dacoity at Rajedu. There is no proof that the articles, which have been identified by Hariram and Sheonarain and other members of their family, were recovered from the possession of these two particular appellants. The conviction, therefore, of the appellants depends entirely upon their identification by Hariram and other villagers of Rajedu. There are two other witnesses, namely, Magan Singh and Sheonath who are said to have seen some persons going towards Rajedu a day before the incident. One of them says that Dhokal Singh was in this party while the other says that Narain was in this party. The learned Sessions Judge has not relied upon the evidence of these witnesses ; but even if some value is placed on their evidence, it would not be sufficient for the conviction of the appellants unless there is proof that the appellants were noticed taking part in the dacoity at Rajedu, and for that reliance will have to be placed on the witnesses from Rajedu and on their identification of the accused. These witnesses of Rajedu are Magnaram, Durga, Hariram, Mohan Lal and Sheonarain. They have identified one or both of the appellants as having taken part in the dacoity in their village. It appears, however, from the statements of the appellants before the identifying officer, in the Magistrate's court and in the Sessions court that the case of the appellants has through-out been that they were shown to the witnesses and that is why the witnesses were able to identify them. It is incumbent on the prosecution in every case where an accused person is not known from before, to put him up for identification. If therefore, it is desirable that an identification should take place, it is the duty of the police in every such case, when an accused person is arrested, to warn him to keep his face hidden as he is to be put up for identification. It is also the duty of the police to take steps themselves to see that such an accused is conveyed Ba Parda (under proper cover) from the place of his arrest: to the thana or wherever else he is taken and from there to the lock-up or the jail. It is also necessary for the police to see that, while such an accused is kept at the thana, there are proper arrangements so that no one is able to see him. Further, if the accused is kept in a lock-up or a jail from which he has to be taken out for purposes of easing himself or for his bath or for any other purpose, it is again the duty of the police to see that proper arrangements are made to keep him Ba Tarda when he is so taken out, till the identification is over. These precautions become all the more necessary in a case like the present where the appellants started saying, from the moment they were put up for identification, that they had been shown to the witnesses. It is also necessary that proper entries in the various police records should be made of the precautions that have been taken to keep the accused persons Ba Parda, and evidence of police constables or other police officers who have made these entries and who kept the accused Ba Parda is produced in court. This evidence, in our opinion, should be produced in every case, and it is absolutely essential to produce it where the police knows that the accused is contending that he was shown to the witnesses before the identification. Let us now turn to the facts which have been proved in this case, and see whether we can rely on the identification that has been proved. So far as Dhokalsingh is concerned, he was kept in the lock-up at Ratangarh and it is admitted fey the prosecution that the prisoners have to go out of the lock -up every day in order to ease themselves and to have bath. It is also admitted that anybody who wishes to see them can do so at such time. Dhokal Singh's case has been that: he had been shown to the witnesses before the identification while he had to go out to answer the call of nature. He further said that he was taken out of the lock-up and sent to some court and then also the witnesses had seen him. No attempt was made by the prosecution to meet this allegation of Dhokal Singh, and to show that his statement in that connection was false. No constable or police officer appeared to prove that Dhokal Singh was kept Ba Parda after his arrest and that no opportunity was given to anybody to see him till his identification was over. Even the prosecution witnesses who identified Dhokal Singh did not swear that they had not seen Dhokal Singh in the interval after the dacoity and before the identification. Under these circumstances there is nothing to displace the statement of Dhokal Singh that he was shown to the witnesses, and the prosecution evidence itself shows that there was ample opportunity for the witnesses to see Dhokal Singh before the identification. No reliance, can therefore, be placed on the statements of the witnesses who have identified Dhokal Singh as the probability of their having seen Dhokal Singh before the identification has not been ruled out. The case of Narain is slightly different. He was kept in Sujangarh lock-up. There is no evidence that prisoners kept in that lock-up have to go out to case themselves or to bathe ; but Narain objected from the very beginning that he had been shown to the witnesses at Degana and Sujangarh police thana. This objection is noted in the identification memo Ex. P-15. In spite of this objection, and in spite of the fact that the prosecution knew that Narain's case was that he had been shown to the witnesses, no attempt was made by the prosecution to prove that Narain's statement was false. The prosecution could easily produce evidence, is they had it, to show that after his arrest Narain was kept Ba Parda wherever he might have been kept till the identification was over. In his case also, even the witnesses did not swear in court that they had not seen Narain in the interval between the dacoity and the identification. This evidence is, in our opinion, absolutely essential to be produced in a case where the accused alleges that he was shown to witnesses if the prosecution except the court to convict on mere identification. As none of the precautions, which we consider necessary, have been taken in this case, we have no option left but to discard the identification of the witnesses from Rajedu. Once that identification is discarded, there is no evidence left to prove the case against the accused. There may be cause for suspicion that those who had an encounter with the police on the 16th August, 1949, might have been connected with this dacoity but suspicion howsoever strong cannot take the place of proof, and proof in this case is lacking. We therefore allow the appeal, set aside the order of the learned Additional Sessions Judge, and give the benefit of the doubt to the accused Dhokal Singh and Narain and order their acquittal. They will be released at once, if not required in any other connection. A copy of this judgment, so that in case want of such precautions, as are necessary, is general in this State, he may issue necessary instructions to see that all proper precautions are taken in cases of this nature. . ;