1. The instant criminal appeal is being preferred under section 374 of CrPC against the judgment of conviction and order of sentence dated 17.10.2008 passed in S.T. No. 04/2007 by the Special Judge, Datia whereby appellant- Durga (appellant of Cr.A. No. 812/2008) and appellant-Nandu (appellant of Cr.A. No. 866/2008) have been convicted under section 364A of IPC r/w section 11/13 of Madhya Pradesh Dacoity Vipran Prabhabit Khestra Act and awarded sentence for Life Imprisonment with fine of Rs. 25,000/- each with default stipulation.

2. Since both the appellants/ accused (Durga @ Raja and Nandu @ Nandkishore) have been convicted by the common order dated 17.10.2008 but appeals have been separately preferred by them, therefore, both the appeals are heard analogously and decided by this common order.

3. As per the case of the prosecution, FIR was registered on dated 24.8.2006 vide Crime No. 90/2006 at Police Station Badoni, District- Datia by the complainant Munna Kushwaha (PW2) in respect of an incident dated 4.7.2006 when around 11 p.m. in the night, Laxman alias Jhagga s/o Ramcharan Kushwaha while lying over in his agriculture field, caught hold of by some miscreants wielding fire arms and was taken by them as hostage to the forest. Midway, while reaching to the well of one Ramkishan Kushwaha took him also after putting a blind fold over his eyes and taken to some distant place where Ramkishan Kushwaha was released but abducted Laxman was taken to the forest and beaten up. Next day morning on 5.7.2006, brother(Munna) of abducted Laxman came to the field, but could not find his brother therefore, missing persons report was lodged and case was taken into investigation.

4. After one month, on 4.8.2006, abducted Laxman got scot free from the clutches of abductors on which Dastyabi Panchnama at Police Station Badoni (recovery memo, Ex.P-3) was prepared. Thereafter statements of Laxman and other witnesses were taken. Since the present appellants-accused Durga and Nandu were already under arrest in some other case, therefore, they were formally arrested by the police. Thereafter, Test Identification Parade (TIP) was conducted for identification of accused Durga and Panchnama vide Ex.P-1 was prepared. Statements of other witnesses were taken by the police and charge-sheet was filed.

5. Appellants- accused abjured their guilt and trial was conducted. Trial Court after considering the evidence led by the prosecution found the appellants guilty of offence as referred above and awarded sentence for Life Imprisonment (L.I.) and fine of Rs. 25,000/- was imposed. Therefore, appellants are before this Court. On behalf of both the appellants, Shri Anil Kumar Shrivastava, learned counsel advanced arguments in detail and Shri Dharmendra Rishishwar adopted the arguments advanced by him for appellant-Nandu also.

6. According to counsel for the appellants, the case mainly hinges upon the test identification of Durga by alleged abductee-Laxman. Although Laxman has identified Durga in the test identification parade but that was not the identification as required by law. From the deposition of Laxman, it appears that abductee-Laxman has already seen the accused Durga alias Raja at Police Station therefore, when TIP was conducted infront of competent authority at jail then it had no meaning because accused-Durga was already known to the victim Laxman and the purpose of TIP was diluted. It is further submitted that TIP of appellant-accused Nandu was never been held at the instance of police during investigation. Appellant-Nandu is the case of Dock Identification wherein Laxman identified Nandu while standing in the Dock therefore, the investigation reveals the casualness in implication of the appellants that too on false pretext. He relied upon the judgment of the Hon'ble apex Court in the case of Daya Singh v.State of Haryana, [AIR 2001 SC 1188].

7. Another point advanced by counsel for the appellants, was the delay caused in conducting TIP because the