TMI Blog1971 (8) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... ion case on January 28, 1963 at about 7.45 p.m. several dacoits had collected on P.W.D. road near Telia Talab, Monghyr police station mofassil and committed dacoity in respect of the properties of a number of passers by. Ganesh Prasad (P.W. 1) and his brother Kamaleshwar Tanti (P.W. 2) who were going together on a cycle from Mong-hyr to their village Nawagarhi, were held up by about 15 dacoits and were deprived of several valuable articles like watch, cycle, shirt, muffler and money. Those articles were forcibly snatched from them on threat of violence. They were then made to sit on one side, away from the main road. When they were sitting there, Thakur Prasad Choudhary (P.W. 6), resident of village Garhi Rampur and Mukhia of the village Panchayat and Ram Baran Mandal (P.W. 3) also happened to come on a rickshaw from Monghyr side and while passing by the place of occurrence they too were intercepted by the dacoits and deprived of their properties. A woman named Dayabati Devi (P.W. 4) and one Prayag Narain Gupta (P.W. 5), a homeopath doctor, who also happened to pass that way in a rickshaw were also attacked by the dacoits and forcibly deprived of their belongings. In the meantime R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh, Inspector of police (P.W. 10). The question, therefore, arises whether his testimony relating to the identification of the appellant provides evidence which, according to the settled principles, can be considered sufficient for sustaining his conviction. 4. Now, according to the High Court it was mentioned in the fard beyan (Ex. I) which is treated as first information report, that the Inspector (P.W. 10) had identified two dacoits as belonging to village Banoudha. These two dacoits are Hasib and Ashique Mian, the conviction of both of whom was upheld by the High Court. Exhibit 1 was the statement made by S.I. Deo Dutt Prasad Varma (P.W. 8) to the police in the hospital. The exact words used therein so far as relevant may herein be read: The Inspector said that among the recognized dacoits he had recognized two dacoits well that they belonged to Banaudha a nearby village. He did not remember their names. He also said that the dacoits seemed to belong to the neighbouring villages and almost all of them were young. The evidence of P.W. 8 has not been relied upon by the High Court for convicting the appellant What is relied upon is the statement in Court of P.W. l0 bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the second test identification parade on the first day when he went for identifying the accused persons. That was on February 14, 1963. This is what he said in Court: I 'attended' T.I. parade for two days. I 'attended' the (T.I.) parade twice on the first day and once on the second day. On the first day and at the first time I identified this accused (points to accused who gives out his name as Akal Jadav').He had opened fire at the time of occurrence. I identified at the second time this accused (points to accused who gives out his name as Mohammad Hasib, alias Tabarak). On the second day I identified this accused (points to one accused who gives out his name as Shekh Quddus, alias Knudwa). It is note worthy that in the trial Court the witness did not identify the appellant as one of the dacoits whom he had seen at the time and place of the occurrence. If that is so then the question arises if the evidence of the test identification parade can from legal basis for the appellant's conviction. 5. As observed by this Court in Vaikuntam Chandrappa v. State of Andhra Pradesh the substantive evidence is the statement of a witness in Court and the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n February 14, 1963, the reason given for this delay that P.W. 10 was till then in the hospital. According to his own evidence in the trial Court, however, P.W. 10 admits to have been discharged from the hospital on February 9, 1963 In his statement before the committing magistrate (which was read as evidence by the trial Court Under Section 288, Cr.P.C. ) he had stated that he had come out of the hospital 7 or 8 days after his admission. It may be recalled that he was out of the hospital on Februarys, 1963. But even if he was discharged on February 9, 1963 it is wrong to say that the test identification parade could not be held before February 14, 1963 by reason of P.W. 10 being in the hospital till then. But this apart, it is not shown that this witness even though in the hospital for treatment of his injuries to his hand and face was not in a position to be taken from the hospital for identification as soon as the appellant was arrested or at least on February 6, 1963 when identification of a number of accused persons was held. We are also not satisfied about the fairness of the identification proceedings. It may be recalled that the first identification parade was held on Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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