Judgment

PALEKAR, J.:- These criminal appeals are by special leave filed by the Delhi Administration against Bal Krishan, Hukam Singh and Ram Singh respectively from an order of acquittal passed by the Delhi High Court. Five persons were put up for trial before the Additional Sessions Judge, Delhi, on charges under Section 395 r/w Sections 397, 396 and 170 I. P. C. Of these, two were acquitted. The other three namely Hukam Singh, Ram Singh and Bal Krishan who were accused Nos. 1 to 3, convicted of the offences with which they were charged and were sentenced to several terms of imprisonment and also to pay a fine. They went in appeal to the High Court against the conviction and sentence and have been acquitted. The Delhi Administration has, therefore, come to this Court in appeal by special leave.

2. It is not in dispute that at about 2.30 A. M. on 1-10-1965 there was a dacoity in the house of one Mohd. Yusuf (P. W. 4) in the locality known as Khureji in Gandhi Nagar area, Delhi. There were four rooms in that house. One of the rooms was occupied by Mohd. Yusuf and his mother Batolan (P. W. 5). In the other room Hakim Uddin lived with his wife Shah Jahan (P. W. 3) and his children. Hakim Uddin s father Bundu (P. W. 6) was also living with him. In the other two rooms Mohd. Yusuf s brother Toshi with his wife and children lived as also one Rahim Ullah. In front of the house, there was a courtyard with a chappar on it. Mohd. Yusuf and Bundu were sleeping in the courtyard while the rest of them were sleeping in the rooms. At about 2.30 A. M. a man was seen scaling down the wall in the courtyard. He unbolted the door and three or four persons rushed into the courtyard. They had torches. Two of them stood near Mohd. Yusuf and Bundu and told Mohd. Yusuf that they were police men who had come to search his house as they had information that illicit distillation of liquor was carried on in the house. The persons who entered the house of Mohd. Yusuf were armed with lathis. Three of them went to the room in which Batolan was sleeping and removed three trunks from that room. When they went into the room of Hakim Uddin and Hakim Uddin got up, they told him that he indulged in distilling illicit liquor. Hakim Uddin denied the charge whereupon he was abused, dragged out and beaten with sticks. He was also given a blow with a phaura , on receiving which Hakim Uddin fell on the ground unconscious. When Bundu stepped forward to save his son, he was also beaten by the dacoits. Mohd. Yusuf ran out of the house and brought a lathi from the house of his neighbour. But he was also surrounded and beaten. Thereafter the decoits ransacked the house, looted property and left.

3. Sub Inspector Harbans Lal (P. W. 43) happened to pass by the side of the house at about 4.30 A. M. to 5.00 A. M. in the course of his night round. He heard the alarm and went to the house of Mohd. Yusuf. He saw injuries sustained by the victims and Hakim Uddin lying unconscious. The Sub-Inspector recorded the statement of Batolan and sent the same to the Police Station, Gandhi Nagar, for the registration of the offence. Hakim Uddin was removed to the hospital. He succumbed to his injuries in the hospital.

4. A search was made for the dacoits but was not successful for about a month. On some secret information received, Inspector Bhim Singh (P. W. 8) went to the Delhi Main Railway Station with a raiding party on the night between 30th and 31st October, 1965 and caught Hukam Singh, Ram Singh and Bal Krishan. As they were to be put for identification, they were instructed to keep their identity concealed. They were remanded to judicial custody on 1-11-1965 to facilitate the test identification parade. Mr. Grover, the Magistrate fixed 6-11-1965 for the test identification parade. When everything was ready for the test, Hukam Singh, Ram Singh and Bal Krishan refused to participate in the identification parade on the ground that there was no use participating in the parade as they had alre