TYAGI, J. - (1.) APPELLANTS Gopi and Kamod Singh have been convicted by the learned Additional Sessions Judge, Dholpur for an offence under sec. 395 I. P. C. and each one of them is sentenced to seven years rigorous imprisonment. Both of them have filed this appeal against the said order of conviction dated 15 of March, 1973.
(2.) A dacoity was committed on the night intervening 16th and 17th February, 1969 at the house of Sitaram, Brindaban and Lajjaram in village Beech-ka-pura, Najra Jaintpur. It is said that the same gang of dacoits looted the house of Ramratan and his sons and Raghubar in village Ghhatri-ka-pura. During investigation, three persons, namely, Gopi, Kamodsingh and Rameshwar were arrested but no stolen property was recovered from them. All of them were challenged in the court of Munsif-Magistrate, Dholpur who committed all the three to stand their trial before the court of Session, Dholpur. The only evidence which was produced by the prosecution against these accused persons was that they were identified by the villagers to be the members of the gang that committed the said dacoity. Rameshwar was acquitted by the learned Additional Sessions Judge, but he found that the prosecution has amply established the presence of Gopi and Kamodsingh at the spot where the dacoity was committed by the gang of which the aforesaid appellants were the members. It is in this manner that the appeal has come before this Court. Learned counsel appearing on behalf of Kamodsingh urged that except P. W. 18 Lalla Beti, no prosecution witness has identified Kamodsingh as one of the members of the gang of dacoits, but it is urged that Lalla Beti's evidence of identification in the court is useless as she could not identify Kamodsingh at the test identification parade organised on 22. 3. 1969 and conducted by Shri Prabhatilal Meena (P. W. 23 ). Learned counsel appearing on behalf of the State candidly admits that except Lalla Beti there is no one to identify Kamodsingh and that Lalla Beti could not identify Kamodsingh at the test identification parade. In view of this infirmity in the evidence of Lalla Beti (P. W. 18), it is difficult to uphold the conviction of Kamodsingh. Now there remains the case of Gopi appellant. The prosecution has produced Dhooa Ram (PW4), Jaswant (PW 6), Budh Singh (PW 7), Munshi (PW-8) Hetsingh (PW 11) Munshi (PW 13) Pancham (PW 14) Sardar (PW 15) Mst. Baikunthi (PW 16), Mst. Triveni (P. W. 17), and Mst. Lalla Beti (P. W. 18) to establish the presence of Gopi with the gang of dacoits that came to the village. Out of these witnesses Dhooa Ram (P. W. 4), Munshi (P. W. 13), Gadi (P. W. 19) and Raghubar (P. W. 20) refused to identify appellant Gopi at the trial though they had correctly identified him at the identification parade. Another Munshi (P. W. 8), Pancham (P. W. 14) and Sardar (P. W. 15) correctly identified the accused persons at the trial but they were not asked to identify the accused-appellant at the test identification parade, therefore, there is nothing on the record to lend assurance to the identification of Gopi by these three witnesses Munshi (P. W. 8), Pancham (P. W. 14) and Sardar (P. W. 15) at the trial. Learned counsel for the State submits that there is overwhelming evidence of identification of Gopi. Jaswant (P. W. 6), Budhsingh (P. W. 7), Hetsingh (P. W. 11), Mst. Baikunthi (P. W. 16), Mst. Triveni (P. W. 17) and Mst. Lalla Beti (P. W. 18) have correctly identified Gopi at the test identification parade as well as in the court. Hetsingh (P. W. 11) has stated in his examination-in-chief that all the dacoits except Gopi had their faces suffled but this part of his evidence has not been believed by the learned trial Judge. P. W. 20 Raghubar has, however, stated that the dacoits were shown to the ladies before they were asked to identify them at the test identification parade. This witness has not been declared hostile. The testimony of Raghubar P. W. 20 makes the entire evidence of identification doubtful. It is no doubt true that the test identification parade by itself is not a substantive piece of evidence, but it is device to find out whether the identification of the accused by the witness at the trial is trustworthy or not and it is why the courts have always given due importance to the test identification parade to be organised before the accused is actually identified at the trial. The courts have also laid stress that such parades must be organised as early as possible after the arrest of the accused after observing the formalities of keeping the accused 'baparda' so that these parades may provide a sort of assurance to the actual identification at the trial which is the only substantive piece of evidence of the identification. In the instant case, the identification parade was conducted by P. W. 23 Shri Prabhatilal Magistrate but the memo prepared by him was lost. The prosecution has pursued a novel method of proving the memo alleged to have been prepared by the Magistrate by bringing on the record a copy of that memo alleged to have been copied out by the investigating officer from the record of the Magistrate. It may be observed that the memo of identification prepared by the officer conducting the parade by itself cannot prove the fact of identification of the accused by the witnesses at the test identification parade. This fact must be proved by the Magistrate who conducted the parade or by the witness who identified the accused. Secondary evidence to prove the document prepared by the officer conducting the test identification parade is of no avail to the prosecution. It is urged by learned counsel for the State that the copies of the identification memo prepared by the investigating officer must be taken in evidence to prove that the witnesses mentioned therein had correctly identified the accu-sed. The learned Magistrate Shri Prabhati Lal Meena (P. W. 23) when came in the witness-box was not asked a single question as to how many prosecution witnesses had identified the accused correctly at the test identification parade. The contention of learned counsel for the State is that there was no necessity for the prosecution to ask the Magistrate when he came in the witness box as to how many witnesses had correctly identified the accused person at the test identification parade because he thinks that it is sufficient to prove the document prepared by the officer concerned showing the result of such test parade. In my opinion, the learned counsel is labouring under a mistaken notion of law. In this connection, I may refer to an authority of the Allahabad High Court in Ram Sanchi vs. State (l) wherein a question whether the memo prepared by the Magistrate at the test identification parade can be treated as an evidence was raised before that court and the learned Judges held that the memo of identification did not amount to evidence within the meaning of sec. 3 of the Evidence Act. The same High Court in Asharfi vs. State (2) however observed in this connection that the identification memo is a record of the statement taken u/s. 164 Cr. P. C. and as such it must be presumed to be genuine under sec. 80 of the Evidence Act and that it is not necessary to call the Magistrate in evidence as the memo under the terms of sec. 80 is evidence of everything that it contains. This ruling was discussed by the learned Judges in Ram Sanchi vs. State (l) and observed - "with great respect to the learned Judges who decided the case of Asharfi AIR 1961 All. 153 we are unable to accept the dictum laid d own in that case. They did not consider, and it seems that it was not argued before them, that a presumption under sec. 80 could only arise if the memorandum of identification amounted to 'evidence' within the meaning of sec. 3 of the Evidence Act. No reasons were given by the learned Judges for the opinion expressed by them and, therefore, we are unable to accept it as laying down the correct law. "
(3.) IN this connection reference may also be made to the observations of the Privy Council in Nazir Ahmad vs. King Emperor (3) where it has been laid down by their Lordships of the Judicial Committee - "when a Magistrate records any confession he does so as a matter of duty and discretion and not of obligation the Magistrate acting under S. 164 is not acting as a court. " IN Purshottam Ishvar Amin vs. Emperor (4), the learned Judges held that the statement recorded by a Magistrate in the course of police investigation under sec. 164 is not evidence in a stage of a judicial proceeding. These observations of the learned Judges go to re-inforce the contention of learned counsel for the appellant that the identification memo cannot be treated as a record of evidence of a witness within the meaning of sec. 80 of the Evidence Act and, therefore, what had happened at the test identification parade cannot be proved only by producing the memo prepared by the Magistrate of the proceedings of such parade. If the prosecution wants to rely on the fact of identification of an accused at the test identification parade to lend assurance to the testimony of the witnesses recorded at the trial, then it is incumbent on the prosecution to prove that a particular witness had correctly identified a particular accused at the test identification parade. It cannot be established by producing the memo prepared at the test identification parade by the officer conducting the same. In the present case, it has not been properly established by the prosecution that the witnesses who had identified the accused person at the trial had correctly identified him at the test identification parade. In the absence of such a proof which is necessary to be brought on the record by the prosecution, the identification of accused Gopi by the witnesses at the trial is not a convincing proof of his participation in the commission of dacoity and, therefore, I feel hesitant to uphold the conviction of Gopi on the evidence produced by the prosecution in this case. Benefit of doubt is, therefore, extended to Gopi. The result is that the appeal is accepted, both Kamodsingh and Gopi arc acquitted of the charge under sec. 395 I. P. C. and the sentences awarded to them are set aside. Kamodsingh is on bail. He need not surrender to the bail bonds which are hereby cancelled. Gopi shall be released from jail forthwith if not required in any other case. . ;