P.N. Yadav, J.@mdashThis appeal is directed against the judgment and order dated the 5th October, 2001 passed by the Adhoc Sessions Judge,
Presiding Officer of the Fast Track Court, I, Siwan in Sessions Trial No. 266 of 1981 arising out of Raghunathpur P.S. Case No. 2(7) 1979
whereby and whereunder he convicted the appellant as well as the accused Haridwar Dubey who is not appellant here u/s 396 of the Indian Penal
Code (hereinafter to be referred to as the Code) and sentenced each of them to undergo rigorous imprisonment for life. At about 12.30 A.M. in
the night intervening between the 14th and the 15th July, 1979 about 24-25 miscreants broke into the house of Bhundeo Mistri of village
Basantpur, P.S. Raghunathpur, District Siwan (not examined), ransacked the house and looted away various house hold goods, articles and
valuables. In pursuance of alarm, several villagers woke up and they assembled and got ready to challenge the bandits. In the meanwhile, the
dacoits opened two rounds of fire causing injuries to Brinda Bhagat (PW 5), Ram Janam Dubey, Triveni Dubey and Manan Prasad Dubey, who
were not examined at trial. The villagers got frightened and out of fear they dispersed hither and thither.
2. The bandits after committing dacoity t in the house of Bhundeo Mistri proceeded to the house of Dhrub Narayan Dubey, the informant (PW 10)
for committing dacoity and reaching his Darwaza where besides the informant and his brother Narsing Dubey were present Rameshwar Nath
Dubey (PW 6), Raj Narayan Dubey, Sudama Mishra (not examined), the miscreants started hurling abuses and they uttered they be killed and
soon certain miscreants lobbed bomb as a result of which Narsing Dubey sustained injuries, fell down and succumbed to the injuries
instantaneously on the spot. The dacoits broke the door of the house of the informant, 8-10 miscreants entered into the house and looted away
various goods and articles including cash, ornaments and watches. A number of villagers arrived there. They were also ordered by the miscreants,
who were outside the house, to be killed and they again threw a bomb which exploded causing injury to Jagdish Mishra about 20 yards away from
the place where Narsing Dubey was killed. After committing dacoity, the miscreants retreated and fled away.
3. The informant claimed to have identified the dacoits by their face in the torch light flashed by him and the bandits themselves. In the next morning
at about 8.30 A.M. Nagendra Kumar Singh, Sub Inspector of Police (PW 11) recorded the fardbeyan (Ext. 3) of the informant Dhrub Narayan
Dubey (PW 10) at his village Basantpur referred to above on the basis of which the formal first information report (Ext.1) was drawn up and the
instant case was registered against unknown miscreants. However, the informant in his re-statement recorded during investigation claimed to have
identified Shivjee Dubey and Devanand Dubey amongst the dacoits in course of commission of dacoity.
4. Nagendra Kumar Singh (PW 11) took up investigation. He visited and inspected the place of occurrence, prepared inquest report (Ext. 4) in
respect of the dead body of Narsingh Dubey, caused the dead body of the deceased to be sent to the mortuary for postmortem examination and
sent the injured Jagdish Mishra to the hospital for treatment where he succumbed to the injuries and recorded the statements of the witnesses. PW.
11 found blood and splinters of bombs at both the places where Narsingh Dubey and Jagdish Mishra fell prey to the explosion of bombs resorted
to by the bandits. He also found the door of the house of the informant broken with marks of violence thereon caused by blows of axe and other
house breaking instruments and the goods and articles of all the five rooms of the house disturbed and scattered, almiras and boxes broken. He got
the suspects put on test identification parades at which the accused-appellant Rama Shankar Tiwary was identified by the witnesses.
5. After collecting the postmortem examination reports and complying with necessary legal formalities PW. 11 submitted chargesheet against the
accused Shivjee Dubey @ Mahant Dubey, Deotanand Dubey @ Chhangur, Haridwar Dubey, Rama Shankar Tiwary, Shivnath Choudhary and
Sudama Kurmi and finally the trial commenced after commitment against the five accused persons excepting Sudama Kurmi who had absconded
but one of them, namely, Shivnath Choudhary died after statements of the accused having been recorded u/s 313 Cr. PC.
6. In order to prove its case the prosecution examined at trial 12 witnesses, viz. Laxman Singh (PW 1), Bhadai Bhagat (PW 2), Bijay Kishore
Singh (PW 3), Krishna Mishra (PW 4), Brinda Bhagat (PW 5), Rameshwar Nath Dubey (PW 6), Dr. D.N. Srivastava (PW 7), Shambhunath
Dubey (PW 8), Hariharnath Dubey (PW 9), Dhrub Narayan Dubey, the informant (PW 10), Nagendra Kumar Singh, the Investigating Officer
(PW 11) and Shri Krishna Sinha, the then Judicial Magistrate (PW 12) who held test identification parades. P.Ws. 2, 4, 6, 8, 9 and 10 were eye
witnesses, P.W. 5 who had also sustained injuries did not support the prosecution case and he was declared hostile by the prosecution. P.W. 9
supported the prosecution case but as he failed to identify the accused Haridwar Dubey in the court when he had identified at the test identification
parade he was declared hostile by the prosecution. P.W. 1 and P.W. 3 were formal witnesses who proved the formal F.I.R. (Ext.1) and the
fardbeyan (Ext.3) respectively.
7. The defence set up by the appellant was that of total denial and false implication out of sheer enmity. He entered into defence and examined a
witness Binda Devi (D.W.1) to probabilise the defence that she was his sister married at the village Basantpur where the place of occurrence
situated and he had been residing there with her for the last 25 years and he was well known to the informant and other co-villagers and as such his
identification on test indentification pafade was meaningless and no reliance can be placed on such identification for basing conviction thereon.
8. The trial court negativing the defence version rendered the verdict of guilt and convicted and sentenced the appellant as well as the accused
Haridwar Dubey to undergo rigorous imprisonment for life u/s 396 of the Code aquitting the accused Shivjee Dubey and Deotanand Dubey vide
the judgment and order impugned. Haridwar Dubey does not appear to have preferred appeal.
9. In order to appreciate the testimony of the witnesses and rival contentions put forward at the bar it would be relevant and convenient to re-
produce, in brief, the evidence brought on records. Besides the informant (PW 10), Bhadai Bhagat (PW 2), Krishna Mishra (PW 4),
Rameshwarnath Dubey (PW 6), Shambhu-nath Dubey (PW 8) and Harihar Nath Dubey (PW 9) were eye witnesses to the incident. All the five
material witnesses referred to above consistently stated that in the fateful night a number of miscreants broke into and ransacked the house of
Bhundeo Mistri and looted away various goods and articles and though the villagers hearing hue and cry woke up and assembled to challenge them
they could not do so out of fear as the miscreants had resorted to firing causing injuries to four persons referred to above and after committing
dacoity there the bandits went to the Darwaza of the informant (PW 10) where several persons including the witnesses were present and they
threw bombs causing injuries to Narsingh Dubey, father of P.W. 8 and brother of P.W. 10 as well as Jagdish Mishra, who was standing near a
tree a little away from the Darwaza of the informant as a result of which they sustained injuries and Narsingh Dubey succumbed to the injuries
instantaneously on the spot while Jagdish Mishra died in the hospital. After lobbing bombs the miscreants broke the door of the house of P.W. 10
entered therein and looted away valuables including cash, ornaments, watches, clothes etc. and decamped with the booty. Investigation was
carried out by P.W. 11 in course of which he found the door of the house, boxes and almiras broken with marks of violence thereon, goods and
articles dispersed and scattered in all the five rooms of the house and splinters of bombs, blood ""on the spots where the two deceased had
sustained injuries. He prepared inquest report (Ext. 4) in respect of the dead body of Narsingh Dubey. Inquest report prepared in respect of the
dead body of Jagdish Mishra does not appear to have been exhibited. P.W. 11 caused the dead bodies of both the deceased to be sent to
mortuary for postmortem examination. P.W. 7 conducted autopsy. He found injuries of burns on the dead bodies of the deceased caused by
explosion. The evidence of the eye witnesses considered together with the objective findings of the Investigating Officer (PW 11) and medical
evidence abundantly established the factum of commission of dacoity with murder in the fateful night. Moreover, commission of dacoity with
murder of the ill fated Narsingh Dubey and Jagdish Mishra has not been controverted and denied by the appellant.
10. Having been established that dacoity with murder was committed in the night referred to above the next most important question for
consideration is whether the appellant was involved and participant in the commission of crime. The first information report was lodged against
unknown as the informant (PW 10) did not name any one in his fardbeyan. In course of investigation P.W. 10 in his re-statement spoke of
complicity of the accused Shivjee Dubey @ Mahant Dubey and Deotanand Dubey @ Chhangur Dubey. However, I am here concerned only with
the appellant Rama Shankar Tiwary and not with Shivjee Dubey and Deotanand Dubey who were acquitted and I think rightly.
11. As per prosecution version, the appellant Rama Shankar Tiwary though not named in the first information report was identified on test
identification parade by the four eye witnesses (PWs. 2, 8, 9 and 10). PWs. 2, 8 and 10 in their deposition stated that they identified Rama
Shankar Tiwary at the test identification parade. They identified him in the court as well. They said that they did not see him nor did they know him
prior to the incident and they saw and identified him for the first time in course of commission of dacoity. They were cross examined at length but
nothing was elicited to impeach their veracity. P.W. 9 also supported the prosecution version in its entirety. He identified the appellant on test
identification parade as well as in the court but as he in the court preferred not to recognise the accused Haridwar Dubey whom he had identified
at test identification parade he was declared hostile by the prosecution. In his evidence he supported the prosecution version and identification of
the appellant Rama Shankar Tiwary at the test identification parade as well as in the court besides the taking place of occurrence leading to the
commission of dacoity with murder of both the deceased. His entire evidence cannot be discarded merely on account of his being declared hostile
for his deliberate reluctance and failure to identify Haridwar Dubey in the court who was identified by him at the test identification parade. No
further discussion need be made on the failure of P.W. 9 to identity Haridwar Dubey, who is not appellant here.
12. Shri Krishna Singh in the capacity of Judicial Magistrate carried out test identification proceedings. He stated that he observing caution, care,
rules and procedures conducted test identification parade on 1.8.1979 and 10.9.1979 and he prepared test identification charts (Exts. 5 & 5/1).
The test identification memo in respect of identification of the appellant Rama Shankar Tiwary was Ext. 5/1 and Ext. 5 was the memo in respect of
identification of the accused Haridwar Dubey. Ext. 5/1 would reveal that the appellant was put on test identification parade on 1.8.1979 and was
identified thereat by P.Ws. 2, 8, 9 and 10 as well as by Bhundeo, Sudama and Mohan. Bhundeo was not examined as he died before
commencement of trial. Sudama and Mohan too were not produced and examined at trial and as such identification of the appellant by them at the
test identification parade is of no avail to the prosecution. P.W. 2 stated in his evidence on oath that he had identified the appellant Rama Shankar
Tiwary at the test identification parade. His name does not find mentioned in col. No. 2 of the test identification memo (Ext. 5/1) but his name is
prominently mentioned in column No. 7 of Ext. 5/1 which contains names of all the witnesses who identified the appellant at the test identification
parade. The name of P.W. 2 appears to have been mis-takenly and inadvertently omitted to be written by the Magistrate in col. No. 2. The
attention of the Magistrate (PW 12) was not drawn to this omission nor was he asked as to why his name was not recorded in col. No. 2 when he
identified the appellant and his name was mentioned in col. No. 7. The contention that since the name of P.W. 2 does not stand mentioned in col.
No. 2 of Ext. 5/1 his statement that he participated in the test identification parade and he identified the appellant thereat is not free from doubt and
the same cannot be accepted is non-merritous P.W. 2 was cross examined at length but his evidence remained un-shaken. His evidence cannot be
discarded merely because his name though mentioned at col. No. 7 was not written in col. No. 2 of test identification chart (memo). The evidence
of P.W. 2 must be accepted and acted upon atleast to lend assurance to the evidence of the other identifying witnesses, that is, P.Ws. 8, 9 and 10.
13. Indentification of the appellant-accused on test identification parade as well as in the court by P.Ws.2, 8, 9 and 10 is free from suspicion.
There is no infirmity or lacuna in their evidence and the same is worthy of credence. The submission that the incident of dacoity with murder
occurred in the night of the 14th and 15th July, 1979, but test identification parade was held after commission of delay of about 15 days, on
.1.8.1979 and on that account, the test identification parade lost its weight and credibility and the appellant cannot be convicted on the basis of
such identification is devoid of merit and force and the same must be discarded outright. The test identification parade was held after 15-16 days
from the date of occurrence. Obviously no inordinate delay can be said to have been committed in holding the test identification parade. In the case
of Anil Kumar vs. State of U.P. 2003 SCC(Cri)770, test identification parade was held 47 days after the accused was arrested while in the case
of Brij Mohan vs. State of Rajasthan 1994 SCC (Cri)527, the test identification proceedings were carried out after three months and in the case of
Daya Singh vs. State of Haryana 2001 SCC (Cri) 553, the test identification parade was held after about 8 years as the accused was not arrested
for a peried of seven and a half years and test identification parade was held six months after arrest. In all these cases delayed identification of the
accused on test identification parade was held to be legal, valid and credible.
14. The cases of Girija Shankar Mishra and anr. vs. State of UP., AIR 1993 Supreme Court 2618, Puttan @ Kamal j Prasad vs. State of UP,
AIR 1992 Supreme Court 1032 and State of Maharashtra vs. Sukhdeo Singh and anr. (death reference and criminal appeal), AIR 1992 Supreme
Court 2100 cited on behalf of the appellant also must not be lost sight of. In the case of Girija Shankar Mishra (supra), the accused was arrested
before 29.3.1973. The proposed test identification parade was adjourned on several dates on one or the other plea set up by the Investigating
Officer and it was ultimately held on June 4, 1973. There was enormous amount of variations and improvements in regard to the description of the
accused and besides delay in holding test identification parade and variations in description of the accused there were several irregularities in test
identification proceedings. There was also probability of the accused being shown to the witnesses before test identification parade was held. The
evidence of the prosecution witnesses also suffered from serious infirmities. In the case of Puttan Singh (supra), test identification parade was held
six months after arrest and there was no plausible explanation at all for such enormous delay in holding the test identification parade. Under such
circumstances, the evidence on test identification parade was not accepted. In the Maharashtra case (supra) one H.S. Bhuller (PW 48), who was
earlier arrested and booked as an accused and one Lalita (PW 49) identified the accused at very late stage in the court only. The accused had filed
a petition that while they were being taken to the court they were shown to the prosecution witnesses (PW 48 and PW 49). Lalita (PW 49)
admitted that the accused were shown to her and P.W. 48 when they were being taken to the court. This admission of PW. 49 nullified the
identification of both the accused by her and P.W. 48. No test identification parade was held nor was there any explanation for not putting the
accused on test identification parade. Besides, admittedly there was considerable change in the appearance of the accused for, earlier they were
clean shaven and later they were attired like sikhs making identification all the more difficult. The facts and circumstances of the cases relied upon
by the appellant are entirely different from those of the present case and as such they are of no avail to the appellant and they cannot come to his
rescue.
15. In the case at hand, the miscreants ransacked and looted away various goods, articles and valuables from the houses of Bhundeo Mistri and
the informant Dhup Narayan Dubey. A number of villagers got ready to challenge and apprehend the bandits while they were committing dacoity in
the house of Bhundeo Mistri but they could not and they out of fear dispersed and went away to their houses because four persons including PW.
2 had already sustained gun shot injuries in the firing resorted to by the dacoits. The miscreants after ransaking the house of Bhundeo Mistri went
to the house of Dhup Narayan Dubey, the informant and they lobbed bombs causing fatal injuries to the deceased Narsingh Dubey and Jagdish
Mishra PWs. 2, 4, 6, 8, 9 and 10 saw the miscreants committing dacoity, opening fire and lobbing bombs and amongst the miscreants the
appellant was identified at the time and place of occurrence and at test identification parade as well as in the court. The circumstances in which the
victims sustained fire arm and bomb injuries, two of whom succumbed to the injuries caused by splinters of bombs, the two houses were
ransacked and various goods, articles and valuables including cash and ornaments were looted away from the houses referred to above within their
full view must have left indelible impression upon the mind of identifying witnesses in regard to facial expressions of the bandits. That impression
regarding facial expressions of dacoits could not have dis-appeared from the mind of the witnesses within a short span of time of 15-16 days.
Lapse of 15-16 days in holding test identification parade would not erase those facial expressions from their memory. I am in agreement with the
trial court that the evidence of all the four witnesses referred to above who identified the appellant is trustworthy and believable. In that view of the
matter, I see no infirmity in the impugned judgment and no reason to interfere with the same.
16. The appellant by examining D.W. 1, Binda Devi seeks indulgence of the court to hold that he resided at the village Basantpur where the
incident occurred and he was well known to and familiar with the witnesses and in that view of the matter his identification on test identification
parade is meaningless and not credible and no conviction can be based on such identification. D.W. 1 came forward to say that her maternal house
situated at village Rajpur under Raghunathpur police Station of Siwan District and she was married to Pramanand Dubey of village Basantpur
situated within the jurisdiction of the same police station, where occurrence took place, the appellant is her brother and he has been residing with
her at her matrimonial house at Basantpur from his very childhood and the informant (PW 10) and others were quite familiar with and known to
him from his childhood. She also stated that her husband Pramanand Dubey and the informant Dhup Narayan Dubey were co-sharers and there
had been land dispute between them for about 25 years. She admitted in her cross examination that she never appeared before the Investigating
Officer nor did she got her statement recorded by the Investigating Officer nor did she have personal knowledge of existence of land dispute
between her husband and the informant and she merely heard of such dispute between them. She further admitted that there was no
document/paper to show that she was the sister of the appellant and her husband and the informant were co-sharers and there had been land
dispute between them. The witness did not stand the test of cross examination. Her evidence does not inspire confidence and the same is fit to be
rejected.
17. On the basis of the evidence of D.W.1, it cannot be said that the appellant is her brother and he had been residing with her at village Basantpur
and he was well known to the informant and other witnesses from his childhood and as such no weight can be attached to the testimony of such
identification. The appellant in his statement u/s 313 Cr.P.C. did not say that he was brother of Binda Devi (D.W.1) and he had been residing with
her at village Basantpur since his childhood and as such he was quite familiar with and well known to the identifying witnesses and in that view of
the matter, an attempt on the part of the appellant to seek court''s verdict on the basis of evidence of D.W.1 and suggestion put to the prosecution
witnesses that his identification at the test identification parade was illegal, meaningless and unworthy of credence on account of the appellant and
the identifying witnesses being known to and familiar with each other since prior to the occurrence must be said to be a futile exercise and the same
cannot render the prosecution version about his identification at the test identification parade suspicious. The appellant was a resident of village
Rajpur and it has come in the evidence of P.W. 10 that the said village situated at a distance of 11/2-2 KOSH that is, 3-4 Miles. No inference can
be drawn that the appellant was known to the identifying witnesses since prior to the date of incident. There can be no presumption that in the
countryside persons of one village are generally known to and familiar with persons of neighbouring villages. Besides the two villages Rajpur and
Basantpur situated 3-4 miles away from each other cannot be said to be such neighbouring villages as to give rise to an inference that persons of
one village must be known to and familiar with the persons of the other village nor can the presecution witnesses and the appellant be said to be in
such proximity that they were known to each other since prior to the occurrence. All the prosecution witnesses identifying the appellant at the test
identification parade stated in their evidence that they did not know the appellant from before and they had seen and identified him for the first time
at the time of commission of dacoity and later on they identified him at test identification parade.
18. The case of Ali Bahadur and others vs. State of U.P. 1998 Criminal Law Journal 2871 (Allahabad) relied upon by the appellant too is not
applicable to the present case. In Ali Bahadur''s case (supra), the accused asserted before the Magistrate that they were resident of neighbouring
village situated within radius of two miles and they were well known to the prosecution witnesses since prior to the incident and one of the accused
had relationship in the village of occurrence. But in the case at hand the village of the appellant situated 3-4 miles away from the village of
occurrence and the appellant in his statement u/s 313 Cr.P.C. did not say that he was known to the witnesses from before the incident.
19. It has also been submitted on behalf of the appellant that Shivjee Dubey and Deotanand Dubey were not named in the first information report
and their names were uttered for the first time by the informant in his subsequent statement recorded during investigation and though the
prosecution witnesses who identified him on test identification parade consistently stated that the accused Shivjee Dubey and Deotanand Dubey
were also involved and participants in the commission of dacoity and they identified them at the spot, their evidence on this point was rejected by
the trial court and the said two accused persons were acquitted and that would mean that the witnesses were not trustworthy and reliable and
hence their evidence on identification of the appellant too cannot be said to be above board and the appellant deserves to be extended the benefit
of doubt. There is no substance in the submission. Rejection of a part of evidence of a witness cannot render his entire evidence doubtful and un-
acceptable. Acquittal of some of the accused in a case would not make the prosecution case as against the other accused doubtful. While
considering and appreciating the propriety of conviction and sentence of the appellant the evidence against Shivji Dubey and Deotanand Dubey
and their acquittal cannot be looked into nor can that pave the ground for acquittal of the appellant by extending the benefit of doubt. Acquittal of
the accused Shivjee Dubey and Deotanand Dubey cannot stand in the way of conviction of the appellant.
20. In view of what has been stated and observed in the preceding paragraphs, it is to be held that the prosecution has been able to bring home the
charge levelled against the appellant beyond the reasonable doubt and he has been rightly convicted by the court below. His convictions does not
warrant interference by this Court. But as regards the quantum of sentence it is to be observed that the case is in respect of an incident that took
place in July, 1979 and since then the appellant has been running from pillars to post for justice. He must be deemed to have been undergoing
tremendous mental agony, physical and economical torture and strains for about 25 years. Considering his trauma, agony, strains and torture which
he has been subjected to all these years the sentence of life imprisonment seems to be exorbitant and excessive. It is deemed justi proper and
expedient in the interest of justice that sentence awarded to him be reduced. Accordingly, the sentence of life imprisonment is reduced to rigorous
imprisonment for ten years and a fine of Rs. 5,000/- and in default of payment of fine to undergo rigorous imprisonment for one year. With the
aforesaid modification in sentence, the appeal is dismissed. The appellant is already in jail custody. He shall serve out the remainder of sentence.
Mridula Mishra, J.
I agree.