LODHA, J: - (1.) THE appellant Mangalia was tried along with one Prabhu for offences under secs. 457, 380 and 392 I. P. C by the Sessions Judge, Jhunjhunu, who by his judgment dated 18 September, 1970 convicted the appellant and the accused Prabhu under sec. 457 I. P. C. and sentenced each of them to ten years rigorous imprisonment. THEy were also convicted under sec. 380 I. P. C. and sentenced to five years rigorous imprisonment each. But in addition to that, Mangalia was also tried and convicted under sec. 302 IPC. for causing the murder of Dulichand by a Pistol-shot and sentenced to imprisonment for life.
(2.) THE prosecution story, in brief, is that both the accused went to the house of Richhpal PW/1 in village Dhigal, Police Station Nawalgarh on the night between 21st and 22nd June, 1969 to commit theft. THE inmates of the house woke up and Nathu Singh PW/11 caught hold of one of the thieves namely, Prabhu. THE other thief namely, Mangalia dealt a blow with a lathi to Nathu Singh to rescue his companion, tut Nathu Singh did not release Prabhu. Mangalia, then, tried to run away through the main door of the house. But meanwhile, on account of the hue and cry raised in the house of Richhpal, Bhagirath PW/5, Kurdaram PW/7 and the deceased Duli Chand, who are brothers living nearby, woke up and proceeded towards Richhpal's house. Bhagirath had a torch with him. Dulichand was head of them. When they reached near Richhpal's house, they saw Manglia corning out. Dulichand caught hold of Mangalia by his neck and Bhagirath held him by his left hand. Kurdaram PW/7 caught his hair. Mangalia then challenged them to release him, lest he would kill them. He took a Pistol out of his pocket and fired a shot at Dulichand right in his chest. Dulichand fell dead. Mangalia ran away from the spot. But Prabhu, as already stated above, was captured by the inmates of Richhpal's house and was produced before the Police. A First Information Report of the occurrence was lodged by Richhpal at Police Station, Nawalgarh (situated at a distance of 16 miles from the place of occurrence) on 22nd June, 1969 at 9. 00 a m. while investigation of the case was in progress, the accused Mangalia was arrested some time in the last week of March, 1970, in connection with proceedings under secs. 55 and 109 Cr. P. C. on 27th March, 1970. THE Assistant Sub-Inspector Hari Kishan made an application to the Magistrate concerned for holding an identification parade in respect of the accused Mangalia. This request was granted and the identification parade was held on 7th April, 1970 by PW/9 Shri Vishnudayal, Munsiff Magistrate, First Class, Jhunjhunu. Mangalia was identified as the other thief who had fired a shot at Dulichand, by PW/5 Bhagirath, PW/7 Kurdaram and PW/11 Nathusingh. THE accused were put up for trial in due course. We are told that Prabhu filed a separate appeal through Jail and the same has been disposed of by the judgment of this Court dated 24 November, 1971 Prabhu vs. State. His appeal was allowed in part and the sentences awarded under both the counts were reduced to the period already undergone. We are therefore, concerned in this appeal with the case against Mangalia only. Learned counsel for the appellant has urged that no reliance can be placed on identification of the accused by the witnesses Nathusingh, Bhagirath and Kurdaram because necessary precautions for keeping the accused 'baparda' were not taken. It has been urged that there are grounds to believe that the accused may have been shown to the witnesses while he was in the custody of the Police. An argument has also been made that an adverse inference must be drawn against the prosecution for not producing the Assistant Sub Inspector Hari Kishan in evidence. It Has also been contended that no proper precautions were taken at the time of identification parade, inasmuch as Mangalia had fetters, whereas the other persons mixed up with him for identification had no fetters on them. In support of his contention, learned counsel has cited, State of Rajasthan vs. Ranjita (1), Muthuswami vs. State of Madras (2), Shri Ram vs. The State of U. P. , (3) and Gopi vs. State of Rajasthan (4 ). It is true that the identification parade was held after about nine months of the occurrence, but for that reason alone, the evidence regarding identification cannot be discarded. It may be recalled that the accused was apprehended in the last week of March, 1970 and thereafter not much time was lost in putting him for identification. PW/5 Bhagirath has stated that on hearing noise in the house of Richhpal, which is very near to his house, he and his other two brothers namely, Kurdaram and the deceased Dulichand went towards Richhpal's house. He had a torch with him. He further states that he identified the accused Mangalia in the light of the torch and got him in his grip. PW/7 Kurdaram fully corroborates the testimony of this witness. He slates that the deceased Dulichand caught hold of the thief by his neck and the witness held him by his hair. PW/11 Nathusingh has deposed that they saw light in the room when they woke up and he caught hold of one of the thieves. He also states that he was ab!e to identify the thief who had fled away namely, the appellant Mangalia. All these witnesses identified the accused in the court, besides identifying him in the identification parade held by the Munsiff. The memo of identification parade is Ex. P/15. PW/9 Shri Vishnudayal has given a detailed description of the identification parade held by him. We have gone through the statements of these witnesses and are satisfied that the identification proceedings were held after observing all the necessary precautions. PW/13 Kalyansingh, Station House Officer, Police Station Nawalgarh has stated that he took over the investigation of the case on 3rd January, 1970 by which time the appellant had not been arrested. He has further deposed that he had applied to the Murisiff Magistrate on 5th April, 1970 for holding identification proceedings arid sent for the witnesses through constable Bhanwarsingh. He has further made it clear that he did not give any indication to the witnesses regarding the features or distinctive marks of the accused, nor showed the accused to them In the course of cross-examination he has further stated that he did not take the accused in police custody before the identification parade was held. There is no cross-examination directed to this witness suggesting that proper precautions had not been taken to conceal the identity of the accused from the witnesses. Our attention has been drawn to two applications dated 27th March, 1970 and 3rd April, 1970 filed by Hari Kishan, Assistant Sub-Inspector in the court of Munsiff Magistrate, Nawalgarh wherein a request had been made by Hari Kishan for holding identification parade in respect of the accused Mangalia. In both these applications it has been requested that the accused may be kept 'baparda'. There is nothing in these applications to show that the accused was handed over to the Police. We are, therefore, unable to accept the contention raised by Mr. Mehta learned counsel for the appellant that the accused was not kept 'baparda' but was shown to the witnesses before the identification proceedings were held. It is true that PW/11 Nathu Singh has stated that there were fetters on the accused Mangalia who appeared like a prisoner, but the witness did not note whether the other persons mixed with the accused had also fetters on them. In this connection, reference may be made to the identification memo Ex. P/15 wherein it is clearly mentioned that there were no fetters on the accused. No such suggestion has been made to the Munsiff Magistrate Shri Vishnudayal nor to PW/5 Bhagirath and PW/7 Kurdaram. It appears to us that Nathusingh has stated so only by slip of memory. Moreover, Nathusingh, no where, says that he identified the accused Mangalia because of the fetters. We are, therefore, unable to hold that any illegality or irregularity had been committed either in course of the identification parade or before that, which may impair the value of the identification proceedings in any way. In Bharat Singh vs. State of U. P. (5) it was held that if the contention on behalf of the accused is that the identification parade was held in an irregular manner or that there was undue delay in holding it, the Magistrate, who had held the parade and the Police Officer who had conducted the investigation should be cross-examined in that behalf. Since in the present case, as already stated above, neither the Magistrate nor the Police Officer nor the witnesses who took part in the identification proceedings have been cross-examined on the point, validity of the identification parade cannot be challenged on the ground of irregularity in the matter of holding it or on the ground of delay in holding it. In this view of the matter, we over-rule the objection regarding identification proceedings.
(3.) AT this stage, we may also refer to the evidence of two more witnesses namely, PW/2 Gomaram and PVY/3 Phoolchand. PW/2 Gomaram has stated that village Dhigal is one mile away from his house. He goes on to state that on the day previous to the day of occurrence, he had seen both the accused together in the village and the appellant Mangalia was putting on turban Ex. /2, which was subsequently recovered from the house of Richhpal. Both the accused were standing near the shop of one Heeramram who deals in betel-leaves. Similarly PW/3 Phoolchand states that he had seen both the accused together in the village about ten or eleven days before the police had brought the accused Prabhu in the village in connection with investigation. The accused Prabhu told the witness that they were strangers to the place and were in need of money. Prabhu gave the witness a ring for sale and the witness arranged sale of the ring to Ramavtar Sharraf for a sum of Rs. 70/-, which were handed over to the accused Prabhu. It is true that Ramavtar has not been produced to corroborate the testimony of this witness. Yet nothing has been brought out in the cross-examination of this witness to show that he is a liar. Thus the evidence of these two witnesses shows that the accused were present in the village some time before the occurrence. We are of opinion that the prosecution has succeeded in proving that the appellant Mangalia and the other accused Prabhu had gone to the house of Richhpal on the night of occurrence to commit theft and that while trying to escape, the accused Mangalia fired a Pistol-shot at Dulichand, as a result of which Dulichand died instantaneously. Learned counsel for the appellant has, however, urged that even in this view of the matter the case against the accused does not fall under sec. 302 IPC , inasmuch as it is covered by exception 2 to sec. 300 I. P. C. and, therefore, he should have been convicted under sec. 304 part II and not under sec. 302 I. P. C. The argument is that Dulichand deceased was not entitled to arrest the accused and, therefore, the accused had a right to defend his person and while doing so, if he had exceeded that right, the case was covered by Exception 2 to sec. 300 I. P. C. . In support of this contention, he has relied upon Abdul Aziz vs. Emperor (6 ). It may be pointed out that the accused was found committing a non-bailable and cognizable offence punishable under sec 457 and 380 I. P. C. and any person who either saw him committing the offence or found him running away immediately after the commission of the offence would be entitled to arrest him under sec. 59 Cr. P. C. as the whole incident including running away of the culprit was a single transaction. The deceased Dulichand was justified in holding the appellant and preventing him to escape and the accused had no right of private defence of person. We are fortified in this view by two judgments of the Allahabad High Court viz. Sheo Balak Dusadh vs. Emperor (7) and Nazir vs. Rex (F. B. ). The law has been discussed thread-bare in the above cited Full Bench case and we respectfully agree to the view taken therein. ;