SHIV KUMAR SHARMA, J. - (1.) THE appellant was placed on trial before, the learned Additional Sessions Judge Kishangarhbas District Alwar in Sessions Case No. 42/1998 on the allegations of robbery and murder. THE learned Judge vide judgment dated Feb. 8, 2001 convicted and sentenced the appellant, as under:- U/s. 302 IPc To suffer Imprisonment for life and fine of Rs. 25000/- in default to further suffer one year Rigorous Imprisonment. U/s. 394/397 IPc To suffer Seven Years Rigorous Imprisonment and fine of Rs. 20000/- in default to further suffer, One Year Rigorous Imprisonment. U/s. 120b IPc To suffer Seven Years Rigorous Imprisonment and fine of Rs. 10000/- in default to further suffer One Year Rigorous Imprisonment. U/s. 3/25 Arms Act: To suffer One Year Rigorous Imprisonment and fine of Rs. 1000/- in default to further suffer. Three Months Rigorous Imprisonment. All sentences were ordered to run concurrently.
(2.) A Jweller Krishna Kumar was robbed and killed outside his shop on February 18, 1998 at around 9 p. m. when he alongwith his wife Anita Devi came out of his shop with the bag containing gold and silver ornaments. Report of the incident was lodged by Hariom with the Police Station Bhiwari where a case under sections 394 and 302 IPC was registered and investigation commenced. The Investigating Officer arrested appellant Dharam Pal and at his instance got recovered ornaments vide memo (Ex. P-9) and 12-bore Deshi Katta (country made gun) vide memo (Ex. P-13 ). Witnesses Hari Om (PW. 1) and Anita Devi (PW. 7) identified Dharampal in the Identification Parade held before the Magistrate. The ornaments recovered at the instance of Dharam Pal also got identified by these witnesses. On completion of the investigation charge sheet was filed against the appellant Dharam Pal and other co-accused persons Chochu @ Afsar, Hukma @ Hukam Chand, Yusuf and Kanwar Singh. As Chochu @ Afsar, Yusuf and Kanwar Singh absconded, standing warrant was issued against them and the case came up for trial only against Dharam Pal and Hukma @ Hukam Chand. Charges under Sections 394, 120b, 397 and 302 IPC and 3/25 Arms Act were framed against the appellant, who denied the charges and claimed to be tried. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under Section 313 Cr. P. C. , the appellant claimed innocence. In defence Hukam @ Hukam Chand examined himself. Learned Trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. Co-accused Hukma @ Hukam Chand was however acquitted. Learned trial judge primarily founded the conviction of the appellant on substantive evidence of identification supported by corroborative evidence in the form of recoveries of looted ornaments and 12 Bore country made gun from the possession of appellant. When the instant appeal came up for hearing in the month of July 2003 we had to invoke section 391 Cr. P. C. for the purpose of recording of the statement of the Investigating Officer. We have now heard the final submissions. Learned counsel for the appellant vehemently criticised the findings of the learned trial judge and made following submissions : (i) Witness Hariom (PW. 1) and Anita Devi (PW. 7) were not present at the time of occurrence and their testimony could not have been relied upon. (ii) No independent person was examined and details of looted ornaments were not incorporated in FIR. (iii) As photograph of the appellant was published in the news paper prior to conducting the identification parade, identification of the appellant looses significance. (iv) The Investigating officer planted the recoveries of ornaments and fire arm in order to falsely implicate the appellant. In support of the contentions learned counsel placed reliance on Girja Shankar Misra vs. State of U. P. (1), wherein their Lordships of the Supreme Court, indicated as under : " It is true that the test identification parade is a step in investigation, but it is the identification in the Court that is an evidence. The test identification parade assumes importance particularly if held within a reasonable time after the commission of the offence. It loses its significance when there is enormous delay in holding it. "
(3.) IN Wakil Singh and Others vs. State of Bihar (2), Hon'ble Supreme Court propounded that where none of witnesses gave any description of dacoits in their statements or in oral evidence nor gave any identification marks, such as stature of accused or whether they were fat or thin or of fair colour or black colour, and only one witness identified dacoits after certain days from test identification parade. Conviction, cannot be based only on identification by single witness. In Ravindra @ Ravi Bansi Gohar etc. vs. State of Maharashtra and Others (3), it was held as under : " The identification parades belong to the investigation stage and they serve to provide the investigating authority with materials to assure themselves if the investigation is proceeding on right lines. In other words, through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were they suspect to have committed the offence were the real culprits and not by showing the suspects of their photographs. Such being the purpose of identification parades the investigating agency, by showing the photographs of the suspects, whom they intended to place in the test identification parade, made it farcical. " In Laxmipat Choraria and Others vs. State of Maharashtra (4), it was held that there can be no doubt that if the intention is to rely on the identification of the suspect by a witness his ability to identify should be tested without showing him, the suspect or his photograph, or furnishing him the data for identification. Showing a photograph prior to the identification makes the identification worthless. ;