Judgment

SARKARIA, J.:- This appeal by special leave directed against a judgment, dated September, 15, 1977 of the High Court of Madhya Pradesh, arises out of these circumstances :

On the night intervening January 5 and 6, 1968, two dacoities were committed in the houses of Ramgopal Soni (P. W. 1) and Rampratit Saraf (P. W. 4) at village Nagama, and property consisting of gold and silver ornaments worth more than Rs. 3 lakhs was looted. In this connection 19 persons were arrested by the police. Out of them, 15 were charged with offences under Ss. 395/397/109 read with S. 120-B, Indian Penal Code.

2. The Sessions Judge, Rewa, who tried the case, convicted two of the accused, namely, Jawaharlal and Munnilal under Ss. 395 and 397 read with S. 109. Penal Code, and sentenced each of them to four years rigorous imprisonment. He acquitted the remaining 13 accused, including Antar Singh.

3. Against the order of their acquittal, the State of Madhya Pradesh carried an appeal to the High Court, which set aside the acquittal of Antar Singh, Tulsi Ram and Ajijuddin, who were original accused 1, 4 and 8 respectively, and convicted and sentenced each of them under Section 395, I. P. C. to four years rigorous imprisonment. Antar Singh only is the appellant before us.

4. The mainstay of the prosecution case against Antar Singh was the testimony of the solitary witness, Diwakar son of Rampratit. The appellant and the co-accused were not known to the witness. The entire case, therefore hinged on the question of identification. Diwakars evidence was to the effect, that the dacoits after beating Ramgopal, rushed into the rear rooms of the house and brought out all the valuables for being filled in gunny bags. Instead of running away, the witness followed the dacoits into the house, merely out of curiosity. Three of the dacoits stood by the side of the witness. One of them was holding a Tamancha, the other a gun and the third a lathi. The dacoits had battery torches which they were flashing. A lantern was also burning in the room.

5. Antar Singh appellant was arrested by the police on May 28, 1968. A test identification parade was held on Nov. 17, 1968 before a Magistrate in respect of some of the co-accused of the appellant who were alleged to be concerned in the same dacoity. But, the appellant was not then put up for identification. A test identification in respect of 9 accused, including Antar Singh, was subsequently held on Dec. 26, 1968. Diwakar is said to have identified Antar Singh only at that parade. No explanation for this delay in holding that test identification was given by the prosecution. This un-explained delay, according to the learned trial Judge, was capable of lending support to the defence plea that the accused had been shown to the witness. In the opinion of the trial Judge, this belated test identification of the appellant "was not of high quality that could lend assurance or complete veracity to the identification of this accused by Diwakar in Court." He, therefore, accorded the benefit of doubt to the appellant and acquitted him. The High Court has reversed this finding of the trial Court with this reasoning :

"This respondent No. 1 Antar Singh has alleged that at Allahabad he was shown to certain strangers by the police but surprisingly P. S. I. Tiwari (P. W. 59) who had arrested him has not at all been questioned on this matter. Naib-Tehsildar R. K. Tiwari (P. W. 4) who conducted the parade had deposed that no such objection was taken before him. He also refuted the allegation that the accused persons were put in the parade manacled."

6. The High Court further observed that the Sessions Judge was in error in rejecting the evidence of identification, only on the ground of delay. However, the High Court appears to have reversed its reasoning with regard to the identification by Diwakar (P. W. 6) of the co-accused, Ram Abhilap. Diwakar and Ramgopal (P. W. 1) had both identified Ram Abhilap accused in the test identification parade