1. Nirmal Baheliya alias Nirmal Pasi and Sona Pasi, the two accused-appellants, have been held guilty of an offence punishable under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life by the additional sessions judge-II, Jehanabad. On appeal, the conviction and sentence have been maintained by the High Court. The accused-appellants have preferred this appeal by special leave.
2. Here itself it may be stated that one Krishna Choudhary was also tried as co-accused with the two accused-appellants on the same charge and was convicted. His appeal before the High Court also failed. However, he has not pursued the matter before this Court.
3. The fact that there was a dacoity which took place on 5.3.1989, at about 6 p.m., at Baidrabad Bazar within Arwal police station of district Jehanabad is not disputed by the learned amicus appearing for the accused-appellants. However, he has seriously disputed the involvement of the accused-appellants in the incident. In his submissions there is no reliable evidence available on record to hold that the accused-appellants had participated in the incident.
4. A perusal of the evidence available on record and the findings arrived at by the learned sessions judge and the High Court go to show that the conviction of the accused-appellants is founded solely on the evidence of identification. Neither any article said to have been stolen in the incident of dacoity or any weapon allegedly used in the dacoity has been recovered from any of the accused persons. The incident is dated 5.3.1989. On 10.6.1989 the investigating officer moved an application before the judicial magistrate first class for declaring the accused persons as absconding and for issuance of warrant of arrest against the accused persons. The learned magistrate allowed the application and initiated the proceedings by issuance of warrants of arrest. Nirmal Baheliya and Sona Pasi, the accused-appellants, surrendered on 5.10.1989. They were arrested. On 15.11.1989, i.e., after the lapse of about 1 month and 10 days they were put up for test identification parade whereat Ajay Kumar - PW 5, Awadh Bihari Prasad -PW 4 and Shyam Bihari Prasad - PW 2 identified these two accused-appellants as those who had participated in the incident of dacoity. Krishna Choudhary, the third accused surrendered on 26.1.1990 whereafter he was arrested. He was put up for test identification parade on 15.3.1990, that is after a delay of about one month and 20 days. He was identified by Shyam Bihari Prasad - PW 2, Parmeshwar Dayal - PW 3 and Awadh Bihari Prasad - PW 4. These prosecution witnesses similarly identified the accused-appellants in the court also. The learned sessions judge and the High Court have believed the identification of the accused persons by the witnesses as abovesaid and rested the finding of guilt thereon.
5. For the several reasons stated hereinafter, we are of the opinion, that the evidence of identification cannot be relied on to base the finding of guilty against the accused persons.
6. Firstly, Sona Pasi and Nirmal Baheliya, the two accused-appellants were put up for identification after a delay of about 1 month and 10 days from the date of their arrest. Similarly, accused Krishna Choudhary was put up for test identification parade after a delay of 1 month and 20 days from the date of his arrest.
The prosecution has not assigned any explanation, much less a satisfactory explanation, for the delay in holding the test identification parades.
Secondly, the accused-appellants have voluntarily surrendered and their surrender was preceded by the initiation of proceedings for declaring them as absconding offenders. The investigating officer had initiated proceedings under Sections 82-83 of Cr.P.C. against the three accused persons by naming them. Nothing has been placed on record to show as to how the suspicion of the investigating officer had fallen on these three accused persons and what had persuaded him to form an opinion as to the involvement of these three accused-persons in the offence of dacoity so as to treat them as absconding offenders.
7. Apart from the abovesaid infirmities, we are surprised to note the manner in which the statements of the accused persons have been recorded by the trial court under Section 313 of the Code of Criminal Procedure. The purpose of recording statement under Section 313 of the Cr.P.C. is to enable the accused person to explain any circumstances appearing in the evidence against him. A piece of incriminating evidence relied on by the prosecution and found proved by the court so as to rest the conviction of the accused thereon must be put to the accused in his statement under Section 313 of the Cr.P.C. enabling him to offer such explanation as he may choose to do. Unless that is done, the piece of incriminating evidence cannot be relied on for finding a verdict of guilty. The questions for recording the statement of the accused-persons have been very superficially framed. There are just 4 questions asked to each of the accused persons.
The incriminating piece of evidence consisting of identification of the accused persons by the witnesses and such identification in court being preceded by test identification parade held during investigation has not at all been put to the accused persons. The accused-appellants have not been afforded any opportunity of explaining such incriminating circumstances appearing in the evidence against them. The incident is of the year 1989. The accused-appellants are in jail. The trial had concluded in the year 1993. After the lapse of such a long time, we are not inclined to remand the case to the trial court for the purpose of recording the statements of accused-persons under Section 313 of the Cr.P.C. and thereafter deciding the case afresh.
8. Inasmuch as we find the prosecution case, especially that part of the case which relates to arrest of the accused-appellants and their identification, suffering from serious infirmities and the trial also to be defective for want of the most relevant piece of incriminating evidence having not been put to the accused-appellants in their statements under Section 313 of the Cr.P.C., the conviction of the accused-appellants cannot be sustained. The judgments of the High Court and the sessions court holding the accused-appellants guilty of an offence punishable under Section 396 of the IPC are set aside. Accordingly, the appeal is allowed.
9. The third accused Krishna Choudhary convicted by the trial court and whose conviction has been maintained by the High Court has not chosen to file an appeal in this Court. However, in view of what has been stated hereinabove, we find the case of accused Krishna Choudhary not distinguishable from the cases of Sona Pasi and Nirmal Baheliya accused-appellants and his conviction and the sentence passed thereon should also be set aside.
10. Sona Pasi and Nirmal Baheliya, accused-appellants are directed to be set at liberty forthwith if not wanted in any other case. So also, Krishna Choudhary, the third accused, though he has not appealed shall also stand acquitted. His conviction under Section 396 IPC and the sentence passed thereon are also set aside. He shall also be released forthwith if not wanted in any other case.
11. Before parting, we place on record our appreciation of the valuable assistance rendered by the learned amicus curiae.