M.Y. Eqbal, J.@mdashThese two appeals are directed against the common judgment dated 19.6.2000 passed by Additional Sessions Judge-II, Dhanbad in Session Trial No. 438/98. All the appellants have been found guilty for the offence u/s 396 read with Section 412 of the Indian Penal Code. Consequently the above named appellants were convicted. However, the trial Court held that since the deceased Satiraman Mehta was assaulted during commission of dacoity in his house by appellant Jugal Mahto (in Cr. Appeal No. 317/2000) which caused his death, accordingly he was sentenced to undergo life imprisonment u/s 396 read with Section 412 I.P.C. However, the appellants of Cr. Appeal No. 299/2000 have been sentenced to undergo R.I. for 10 years u/s 396 read with Section 412 I.P.C. The periods of custody, so far these appellants are concerned, have been set off from the period of sentence of imprisonment.
2. The prosecution case, in brief, is that in the night of 30-31st January, 1998, while the family members of the informant were sleeping after taking meal at about 1-2 A.M., the informant Sheela Kumari Mehta was awaken by one appellant and behind him, other accused persons were standing. It was alleged by the informant that she was assaulted by one accused on the direction of other accused and one accused took away her ear-ring and mangal-sutra and when her Dewar raised halla "Chor-Chor", the accused persons entered in his room and assaulted him by lathi and sharp cutting weapon and injured him. Further case of the prosecution is that the Dewar of the informant, namely Chandra Shekhar Mehta, Satiraman Mehta, Rajesh Kumar and Sudhangshu were assaulted by the accused persons and they received serious injuries. The accused persons also assaulted Nanad of the informant and her ear ring, silver payel, were taken away by one of them. The accused persons alleged to have asked the informant as to where she has kept Rs. 1,50,000/- and in search of that money, the accused persons scattered the articles of the house and took Rs. 700/- from the box and one golden chain, one silver chain, two pairs of silver payals and Rs. 1700/- and other ornaments. Further case of the prosecution is that the accused persons tied the hands of Chandra Shekhar and hands and legs of informant''s Nanad and thereafter they went away and then the informant made the hands and legs of her Dewars and Nanad free and on halla, many persons reached there from nearby who took the informant''s Dewar to hospital where one of her Dewars, namely Sati Raman, succumbed to injuries.
3. The fardbeyan of the informant was recorded by the Police on the basis of which F.I.R. was drawn and the case was instituted. The Investigating Officer, after completing investigation, submitted chargesheet in the Court of Chief Judicial Magistrate, on the basis of which, cognizance of the offence was taken u/s 396 read with Section 412 of the Indian Penal Code and, thereafter, the Chief Judicial Magistrate transferred the case record to the Court of Judicial Magistrate. Finally the case was committed to the Court of Sessions. The charges were framed by the Addl. Sessions Judge, to which they denied the charges and claimed to be tried.
4. Out of 19 witnesses examined by the prosecution, PWs 1 and 2, namely, Laxmi Nath Ghosh and Pradip Kumar Bhagat reached at the place of occurrence on Hulla and found that four brothers were injured including the informant. PW 1 deposed that police recovered four full pants, three shirts, one Kurta , one pair shoe and one plastic chappal from a tank and prepared a seizure list. He became the witness of seizure list. PW 2 also reached the place of occurrence on hulla and found the informant and other persons injured. Similarly PW3, Rupak Chandra Das and PW 4, Hira Lal Bose alleged to have reached the place of occurrence on hulla and found the informant and her Devar in injured condition. They have also deposed about the dacoity committed in the house of the informant. PW 5, Surya Bhusan Prasad and PW 6, Brajesh Kumar have also reached the place of occurrence on hulla and deposed about the commission of dacoity in the house of the informant. PW.5 is the witness of the seizure list prepared by the police. Hence, PWs 1, 2, 4 and 5 are not the eye witnesses to the occurrence but they reached the place of occurrence and found the informant and her Devar in injured condition. PW 6 in his deposition has stated that on the date of occurrence he was sleeping and woke up on hulla of the informant Sheela Devi. The accused persons entered into the room and assaulted all the family members who were sleeping there. The accused also assaulted him on his head and due to injury he became unconscious. However, he has identified some of the clothes recovered by the police and deposed that the accused persons were bearing those clothes while they were working as labourers in his house. PW 7 is Chandra Sekhar Mehta, PW 8 is Anju Bhaskar and PW 9 is Sudhansu Kumar Mehta. All these witnesses alleged to have been sleeping in the room. According to their evidence they woke up on hulla and found the accused persons entered into the room and assaulted them. They further deposed that the accused persons were asking them as to whereabout of Rs. 150000/-. They also deposed about the accused persons committed dacoity in their house and after looting money and other articles, injured them. PWs 8 and 9 deposed that they identified two accused persons in one Test Identical Parade (T.I.P.) including one accused, who alleged to have assaulted the deceased. PW 11 is Dr. Shailendra Kumar, who conducted post mortem of the deceased Sati Raman Mehta, who succumbed to the injury alleged to have caused by the dacoits. PW 12 is Dr. Captain Iswari Narain who has examined one of the victims Chandra Shekhar Mehta. PW 15 and 16 and 17 are the Judicial Magistrates who held T.I.P. of the accused in the District Jail and proved T.I.P. Chart.
5. Besides the aforementioned witnesses, PW. 14 is the informant and PW.18 is the Officer-in-Charge of Topchanchi P.S. PW.14 Sheela Kumari Mehta, who is the informant, deposed in her examination-in-chief that in the night of 30/31st January, 1998, while she was sleeping in a room of her house, the accused persons entered into her room. She has stated that one of the accused was standing in her left side and three accused were standing behind her and when she made noise, one accused assaulted her on her head and other accused persons snatched her ear-ring, mangalsutra, golden chain, silver chain, four pairs of payal and Rs. 700/- cash. She deposed that her Devar and other family members were sleeping in the adjacent rooms and when she raised hulla ''chor-chor'', the accused persons entered into the room and other family members were assaulted by them. They took away ornaments. She further stated that the dacoits tied her hands and also the hands of her Nanad and Devars and looted one bag clothes and small radio. She further deposed that the police came on the place of occurrence and she gave her fardbeyan which was written by the police and read over to her in which she put her signature. She identified one airbag, shirt, two full pants and one radio in the T.I.P. at the police station. The informant in her cross-examination has categorically deposed that she could not identify the accused persons who committed dacoity in the house.
6. PW.18, who is Officer-in-Charge, deposed that on telephonic information about the occurrence of dacoity, he reached the place of occurrence along with other police officials at about 4.00 o''clock in the morning and recorded the fardbeyan of the informant Sheela Kumari Mehta and thereafter, investigated the case after recording the statements of the victim in the hospital. He proved the carbon copy of inquest report of deceased Satiraman Mehta. He further deposed that from the house of the informant he seized one shawl, two bed-sheets, one sweater and one towel woven with blood and prepared the seizure list. He also proved the seizure-list of other articles recovered. He further deposed that on the basis of confessional statement made by one of the accused Puran Mahto before the police he recovered from his ''Bari'' at the back of the house of the accused one radio and prepared a seizure-list. However, he stated that during the midst of investigation, he was transferred and the charge of investigation of the case was given to Mr. Binod Kumar Rawat, Officer-in- Charge, Topchanchi Police Station who submitted charge-sheet. In his cross-examination, he deposed that he did not get blood woven in the clothes chemically examined. He further deposed that the accused persons were arrested in their house and before the confession of the guilt of accused Jugal Mahto, he was not made accused in the case. PW.19 is Pannalal Ram, Sub-Inspector Topchanchi Police Station. He produced shirts, pants, radio and other articles allegedly seized during investigation. On the basis of the evidence of these witnesses, the trial Court held the accused persons guilty of the charges levelled against them.
7. We have heard Mr. A.S. Dayal, learned Counsel appearing for the appellants and the learned A.P.P.
8. Admittedly, the accused persons are not named in the F.I.R. PW.14, the informant, in her evidence, very categorically stated that she could not identify any of the dacoits as they had covered their faces with clothes. The other injured witnesses have also not identified any of the accused persons at the time of commission of dacoity.
9. PW.8 is Nanad of the informant who woke up on hulla. In her evidence she stated that the hands and legs of her Bhabhi and brothers were tied and that two dacoits had covered their faces with Gumcha. PW.9, one of the victims, has deposed that he had gone twice for T.I.P. However, he has never seen the dacoits earlier, whom he identified in T.I.P.
10. It is, therefore, clear that on the point of identification, the evidence is totally doubtful as admittedly, according to the evidence of the informant, the dacoits had covered their faces at the time of alleged occurrence. Merely because it has come in evidence that some of the appellants had been working as Rajmistri in the house of the informant, it cannot be presumed that their identification has been established. As a matter of fact, the prosecution witnesses have given contradictory evidence on material points which goes against the merit of the case and the same creates doubts in the prosecution version.
11. It is well settled that evidence on T.I.P. can be used only to corroborate substantive evidence given by the witnesses in Court regarding identification of the accused if the manner of holding T.I.P. throws suspicion on the police, the evidence is not entitled to any weight.
12. In the case of
6. Before dealing with the evidence relating to identification of the appellant it may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former''s arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fairplay can be assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witness.
13. As noticed above, the accused persons are not named in the F.I.R. and the informant not only in the F.I.R. but in her evidence also stated that she could not identify any of the accused persons as they had covered their faces. It is only on the basis of some clothes alleged to be of the accused persons they were apprehended. The prosecution witnesses in whose presence offence alleged to have been committed are related to each other including the deceased. It further appears that the prosecution witnesses are vitally interested in the outcome of the prosecution case. Hence, in view of the settled law, their evidence has to be considered with due care and caution.
14. Besides the above, the evidence of the informant vis-�-vis the other related persons appears to be inconsistent and not worthy of reliance. The facts and circumstances came to light may give the strong suspicion against the accused persons but it cannot take the place of proof. In absence of consistent, cogent and reliable evidence, in our view, the accused persons are entitled to benefit of doubt.
15. After giving our anxious consideration to the evidence given by the prosecution witnesses, we do not find the conviction and sentence of the accused persons given by the trial Court justified.
16. For the reasons aforesaid, these appeals are allowed and the impugned judgment of conviction passed by the trial Court is set aside and the accused persons, namely the appellants, are acquitted from the charges. The appellants of Cr. Appeal No. 299 of 2000(P), who are on bail, are discharged from the liability of their respective bail bond and the appellant of Cr. Appeal No. 317 of 2000 (P), namely Jugal Mahto, who is in custody, is directed to be released forthwith if not wanted in any other case.
