- (1.) THESE are two criminal appeals and as they arise out of the same judgment they are being dealt with together. Both the accused, Ocha and Sanwalia, have been convicted by the Additional Sessions Judge of Dholpur on the 28th of June, 1952, under sec. 365 I. P. C. and sentenced to 5 years' R. I each and a fine of Rs. 200/- each or in default three months* further R. I.
(2.) THE prosecution case is that on the 13th of August, 1950, while Mangal Sen was returning from Bhuteshwar Mahadeo's fair on his bicycle he was stopped on the bridge of Kheri river by Ram Prasad and some other dacoits who were lying in ambush near about also came there and they took away Mangal Sen with them leaving his cycle on the road. Mangal Sen was kept in confinement by those persons for one month and ninedays at various places. Ultimately, on the 22nd of September 1950, he escaped during night along with Rameshwar and Jagannath who had also been abducted by the same gang of dacoits and who were kept with Mangal Sen. THEy got this opportunity as Madho Singh who was looking after them was fast asleep in the night and Mangal Sen, Rameshwar and Jagan Math woke up and got any opportunity to slip away. THEy left Shyamlal behind who was also an abducted person as he was sleeping close to Madho Singh. Mangal Sen reached Bart Police Station in the morning and he reported to the police the whole story naming some of the dacoits whose names he had know during his stay with them. Sanwalia and Ocha were named by Mangal Sen at that time. Sanwalia was arrested on the 25th of June, 1951, and Ocha on the 23rd of August, 1951. THEy were both challaned for abduction Mangal Sen and for keeping him in wrongful confinement to the court of the Extra Magistrate, Dholpur, who committed them to the court of Session. On the evidence of Mangal Sen, Rameshwar, Jagannath and Shyamlal both Sanwalia and Ocha were convicted by the court of Additional Sessions Judge, Dholpur, under sec. 365 I. P. C. and sentenced as stated above. Both the accused pleaded no knowledge of this offence and they said they were innocent. In these appeals he following innocent have been urged : (1) The learned Additional Sessions Judge was wrong in treating certain ques-tions put by the accused as their admissions of guilt. (2) The accused were not previously known to Mangal Sen, Rameshwar, Jagannath and Shyamlal. As such the prosecution should have arranged a test identification parade in the absence of which their evidence regarding identity of the accused person should be taken to the of little value. These eye-witnesses have stated that they could not give details of the other dacoits who were not before the court, which would further go to discredit the evidence of these witness regarding the identity of the appellants. (3) Tunda who pointed the spot of occurrence to the investigating Officer for the first time was not produced by the prosecution in court and withholding of his evidence should give rise to an adverse inference against the prosecution. (4) After the First Information Report, the prosecution did not start for about two months and the prosecution witnesses were also not examined during that period. This circumstance has materially prejudiced the accused persons. The evidence of the prosecution witnesses should be discredited for this reason as well. (5) The solitary statement of Mangal Sen regarding his abduction by the appeallants alone with others should not be believed. The learned Deputy Government Advocate has frankly admitted that the learned Additional Sessions Judge was wrong in seeking help from certain questions put by the accused in cross-examination of the prosecution witnesses. One of the question put by the accused in cross-examination was whether the dacoits who were keeping Mangal Sen in confinement tried to run away when they saw some other persons approaching near them, thinking them to be police officers? This question probably was put in order to show that at that time Mangal Sen got an opportunity to escape. The learned Additional Sessions Judge thought that the accused could have the knowledge about this circums-tance only when they were present on that particular occasion. Such an inference is not warranted by law. How the accused came to know about it is a question which in independent of this inquiry. The accused might have come to know of this fact from some other source and it cannot be assumed that because they put the question they should be held responsible for the offence. No question was put in this behalf at the time of the examination of the accused; otherwise they could have explained how they come to now about this circumstance. Any way, the learned Additional Sessions Judge was not justified in using these questions put by the acccused as their admissions of guilt. The case shall have to be decided without reference to such inference. It is not disputed that Mangal Sen was lifted by the dacoits and was kept in wrong-ful confinement by them for one month and nine days. The only point which is raised is about the identity of the appellants; whether they were among the persons who lifted Mangal Sen and kept him in wrongful confinement. No charges had been framed against the accused regarding keeping Mangal Sen in wrongful confinement and we are not concerned with that aspect of the case. The charge relates to the abduction of Mangal Sen for the purpose of keeping him in wrongful confinement only From the evidence of Mangal Sen it is also clear that he was taken away by the dacoits by show of force and this was a clear case of abduction. The purpose for which Mangal Sen was abducted is also very clear from the statement of Mangal Sen. Mangal Sen was asked by the dacoits to write a letter to one of his relatives requesting them to pay a ransom of Rs. 5,000/ -. Mangal Sen was actually kept in confinement for one month and nine days after which he slipped away during night. The purpose of abduction therefore, is clearly established to be that of wrongful confinement. As regards that point of identity of the two appellants the learned counsel of the appellants has laid great strees on the point that the prosecution should have arranged a test identification parade and because they did not do so the evidence of the eye-witnesses should be regarded as of little value. A number of authorities have been cited in support of this contention. The first case cited is Sudhindra Nath Dutt vs. The King (l) wherein the relevant observations are as follows: - "before a court can accept evidence of identification as sufficient to establish the identity of the accused, it is very necessary that there must be good corroborative evidence and the corroborative evidence which one is entitled to expect is the evidence of the witnesses having pointed out the accused persons whom they have identified in court from the midst of other persons with whom they are mixed up at a test identification parade. " The next case cited is of Birey Singh vs. State (2) wherein regarding the identification proceedings the learned Judges have observed that "in the absence of identification proceedings mere ipse dixit of the witnesses that the accused was one of the dacoits could not be believed". The case of Sahdeo Shyam vs. State of Vindhya Pradesh (3), Mokhan Singh vs. Emperor (4 ). Dhokal Singh vs. The State (5) and Aminchand vs. The Crown 6) have also been referred to on this point. The observations of the learned Judges in these cases are very similar to those already noted above. The learned Dy. Government Advocate has replied to this argument by saying that as Mangal Sen, Rameshwar, Jagannath Shyamlal had lived with the dacoits for more than a month, it was not necessary for the prosecution to arrange a test identification prade in their case. The evidence of these witnesses should be believed by itself because the witnesses had more than sufficient opportunity to know the appellants. It may be noted that substantive evidence is the evidence of the witnesses identifying the accused in court and in order to test the credit-ability of the evidence it has very often been insisted by the courts that where the accused persons are strangers and they were not known to the witnesses from before their ability to identify should be tested by arranging an identification prade soon after the arrest of the accused after taking; full precautions that the witnesses get no opportunity to see the accused persons before the test identification prade. However, where the accused are known to the witnesses from before there is no point in arranging a test identification prade and in such cases it is held that it is not necessary for the prosecution to arrange such a prade. The courts have gone to the length of saying that the evidence of the witnesses regarding identity of the accused would be of little value where test identification prade are not held when they should have been so held according to the principles discussed above. No hard and fast rule can be laid down for believing or disbelieving of the evidence of a particular witness and it is always open for a court which tries the case to attach such value to the statement of a witness as it deserve under the circumstances of the case. There is nothing on the record to show why the Investigating Officer did not try to arrange a test identification parade. In his statement the Investigating Officer has thrown no light on this point. The learned Government Advocate, however,thinks that probably this was due to the fact that the witnesses had lived with the accused persons for a considerable length of time and the Investigating Officer, therefore, did not feel that the courts would require any corroboration is support of their evidence. This may be so, still it is safer to avoid such risks and where the accused persons are not known to the witnesses previously and where they are strangers, it is very necessary that test identification should be held. However, it cannot be said that because a test identification was not arranged the evidence of the eye-witnesses should be disbelieved wholesale. The Calcutta case cited by the learned counsel of the appellants was a case of cheating. The accused met the witnesses for about 3 or 4 days a number of times and the court was not inclined to believe the evidence of the witnesses without a test identification. Similarly, in the Allahabad case the witnesses saw the accused at the time of the occurrence for a short time only and it was held that their evidence about the identity of the accused was not of much value without a test identification. The Rajasthan case referred to above is also a case of dacoity in which the witnesses had seen the accused during the course of the occurrence. It was held that it was not safe to believe the evidence of the witnesses regarding identity of the accused without a proper test identification prade. In none of these cases the witnesses had lived with the accused for a considerable length of time in order to enable them to note the features of the accused minutely. All the four witnesses Mangal Sen, Rameshwar, Jagannath and Shyamlal were kept by the dacoits in their confinement for about one month and nine days and they had several occasions to come in their contact. There can, therefore, be no doubt that all these four witnesses would make no mistake regarding the identity of the accused persons. The evidence of Mangal Sen is corroborated by the evidence of the other three witnesses, Rameshwar, Jagannath and Shyamlal. The trial court was, therefore, not wrong in putting reliance on the evidence of these witnesses and the argument of the learned counsel of the appellants based on the absence of a test identification parade cannot held the accused under the peculiar circumstance of this case. Mangal Sen. Rameshwar and Jagannath have stated that they cannot give true description of the dacoits other than the accused, even though they could identify them if they were brought before them. Nevertheless Rameshwar when questioned about Shanker Singh gave particulars about his person. This point was not pursued by the Public Prosecutor in re-examination probably because this case did not relate to the other docoits and it was not thought necessary to put questions in re-examination about the dacoits who were not before the court. The learned counsel of the appellants wants to make use of this aspect of the evidence in showing that the memory of the witnesses was not very good. This inference is also not warranted under the circumstances of the case. Had it been so, Rameshwar could not have given the details about Shanker Singh. The memory of one witness may be unreliable but it cannot be said that the memory of all the witnesses was bad and unreliable. Much help cannot be derived from the answers of the witnesses about the particulars of other dacoits whose case is not before the court. The case diary was produced by the learned Government Advocate and the learned defence counsel read the statement of Tunda in it. It was found that Tunda's evidence was not material in this case and as such no adverse inference can be drawn against the prosecution for his non-production. The learned defence counsel did not lay stress on his point after having read the statement of Tunda in the case diary. It is true that in immediate steps were not taken regarding the investigation of this case on the filing of the First Information Report. But this was due to the fact that the officer incharge of the police station at Ban thought that the related to the jurisdiction of the police station at Baseri and when the case was transferred to Baseri the officer incharge of the Baseri Police Station did not start investigation for the reason that in the opinion of that officer the case related to the Bari Police Station. This dispute took some time before it was settled and finally the officer incharge of the Baseri Police Station started investigation. Much cannot be made in favour of the accused of this sort of delay in the investigation of the case. Mangal Sen was examined by the officer incharge of the police station at Bari when he appeared before him on the 22nd of September, 1950, and he was examined the second time by the officer investigating the case on the 5th of November, 1950. The argument of the learned counsel of the accused that conviction should not be based on the solitary statement of Mangal Sen is also of not much help to the accused as the statement of Mangal Sen is supported by the evidence of three other witnesses who were with Mangal Sen for a long time in confinement of the dacoits. The authority cited in this behalf viz. Samunder Singh vs. The State (1) is not applicable to the circumstances of this case. That was a case of dacoity in which the witnesses had seen the dacoits casually at the time of the commission of the dacoity and it was, therefore, held that it was not safe to convict the accused on the solitary statement of one witness regarding the identity of the accused. In the present case there are four witnesses who had seen the accused persons for a considerable length of time, It has been urged by the learned counsel of the appellants that the sentences of the appellants in this case should be made to run concurrently with the sentences passed in a case started on the complaint of Ram Swarup and Jagannath. It is contended that both the cases are of the same nature and are of the same period. The learned Government Advocate has replied to this argument by crying that the accused were sentenced in this case first and were sentenced in the other cases thereafter. They could therefore raise this point in the other cases. Under these circumstances, it does not appear proper to make any order in this case about the sentences to run concurrently with those passed in other cases subsequently. Lastly, it is urged that the circumstances of this case are not much different from the circumstances of the Rameshwar's case in which a sentence of three years' R. I. has been awarded and the same sentence should be considered sufficient to meet the ends of justice in this case as well. There appear some force in this argument. The two cases are very similar and there is hardly anything to distinguish between the two. The sentence of five years' R. 1. is, therefore, reduced to a term of three years'. R. I, each in case. These appeals are partly allowed and the convictions of Ocha and Sanwalia are maintained. They sentence are reduced to three years' R. I. each in addition to the sentence of fine passed by the lower court. . ;