Judgment

MITTER, J.- This is an appeal by Special Leave from the judgment and order of the Madhya Pradesh High Court, Gwalior Bench on April 24, 1965 in Criminal Appeal No. 55 of 1964. The said appeal was heard and disposed of along with two other appeals Nos. 44 and 45 of 1964. The appellant before us, Harnath Singh was the appellant in Appeal No. 55 of 1964 while Narayan Singh and Chhotelal were the appellants in the other two appeals. Narayan Singh and Harnath Singh were convicted by the Additional Sessions Judge, Morena, under Section 395 of the Indian Penal Code while Chhotelal was convicted in the same trial under Section 395 read with S. 75 of the Indian Penal Code.

2. The prosecution case was as follows. There was a dacoity at the house of one Dhudilal in village Chhota Khada on the night of December 10, 1962 in which the inmates of the house were beaten and property, to wit, Rs. 350 in currency notes, some silver ornaments etc., belonging to one Raghunath were taken away by the decoits from the said house. Ramkumar (P. W. 1) raised an alarm which brought the neighbours on the scene and one of the dacoits, Chhotelal, was caught on the spot and handed over to the Police. The first information report was lodged by Dhudilal at about 9 a.m. on the following morning. During investigation Rs. 335 in currency notes besides some silver articles and small change were found on the person of Chhotelal. Some articles were also produced by Narayan Singh on December 12, 1962. On the same day, on a personal search of the appellant, Harnath Singh, four George V Silver rupee coins one Victoria silver rupee coin, one silver half-rupee coin and old square coin with vermilion on them were found and seized. On December 24, 1962 there were test identification parades of the accused and all the appellants were identified by some of the eye-witnesses. The appellant, Harnath Singh,was identified by Ramkumar (P. W. 1). Panabai (P. W. 13), and Hari Shankar (P. W. 15). The Articles seized from the accused were also identified. Chhotelal admitted his presence in the village on the night of the incident and the seizure of Rs. 335 from his person but claimed them as his own. He denied the seizure of the other articles from his possession. Narayan Singh denied the recovery of any articles from his house while the appellant. Harnath Singh, admitted the seizure of five rupee coins and the square coin from his person but claimed them as his own.

3. The Sessions Judge found all the accused guilty and sentenced them as stated.

4. So far as the appellant Harnath Singh is concerned, the High Court held that he had been "identified as one of the decoits by Ramkumar (P. W. 1) Panabai (P. W. 13) and Hari Shankar (P. W. 15)" and they had also "identified him earlier in a test identification parade" Discussing the question as to whether the evidence with regard to the test identification parade was admissible in view of the fact that it was conducted by a Magistrate of the Third class who was not empowered to record statements under Section 164 of the Criminal Procedure Code, the High Court was of the view that:

"the test identification parade.......cannot be disregarded as of no value under the circumstances of the case.

5. The High Court then went on to consider the evidence against the appellant as to his being concerned in the dacoity. It relied on the testimony of Ramkumar, P. W. 1, that the appellant was standing near his sister, Tulsabai and had a Gajkundi and was firing crackers. Ramkumar had also given a description of the appellant to the Police and stated in his evidence that he was able to identify him from his facial features. Panabai, another of the identifying witnesses, had stated that the appellant was wearing a black coat and was flashing a torch. The third identifying witness, Hari Shankar, could give no special reason for identifying the appellant but stated that he was standing near his aunt, Tulsabai. All these witnesses stated that they had ide