The importance of fair test identification parades and the need for reliable evidence to prove the recovery of stolen articles in criminal cases.

JUDGMENT :

1. Judgment passed in this appeal shall also govern the disposal of connected Criminal Appeals No. 1057/1996 (Ramprasad vs. State of M. P.) and 1068/1996 (Dinesh vs. State of M. P.) since they have arisen from the common judgment of conviction and order of sentence.

2. Feeling aggrieved by the judgment of conviction and order of sentence dated 5-12-1996 passed by learned Additional Sessions Judge, Agar, District Shajapur in Sessions Trial No. 137/1985 convicting the appellants under sections 395 and 450, Indian Penal Code and thereby sentencing them to suffer R.I. of four years and three years respectively apart from the fine and the defaulting clause mentioned in the impugned judgment, the appellants have knocked the doors of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973.

3. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that on the report lodged by Ramchandra Soni a case was registered against the appellants under sections 457 and 380, Indian Penal Code, but, later on it was altered to sections 450 and 395 Indian Penal Code. After the stolen articles were seized and the investigation was over a charge-sheet was submitted in the committal Court which committed the case to the Court of Session from where it was received by the trial Court or trial.

4. Learned Trial Judge on the basis of the allegations made in the charge-sheet, framed the charges punishable under sections 395 and 450, Indian Penal Code against the appellants which they denied and requested for trial.

5. The prosecution, thereafter examined the witnesses and proved the documents. The defence of the appellants is of false implication and the same defence they set-forth in their statements recorded under section 313, Criminal Procedure Code, however, in support of their defence they did not choose to examine any witness.

6. Learned Trial Judge on the basis of evidence placed on record came to hold that the charges are proved against the appellants and eventually, convicted them and passed sentence which I have mentioned herein-above.

7. In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence.

8. The contention of learned counsel for the appellants in all the appeals is that two persons namely, Shakir and Pradeep were named in the FIR and other accused persons are unknown. Learned counsel submits that all the appellants were arrested on 26-10-1985 while accused Dinesh was arrested on 29-10-1985. Although these appellants were arrested on these dates but accused Dinesh was not included in the test identification parade, although appellants Shabir and Ramprasad were put for test identification parade along with other accused persons who have been acquitted by the trial Court. Appellants Shakir and Pradeep were not included in the test identification parade because they have been named in the FIR. In the test identification parade, appellant Shabir was identified by Devilal (PW-2) while Jagdish (PW-4) identified appellant Ramprasad. The contention of learned counsel is that there is no justification on the part of the investigating agency to put these accused persons, in test identification parade after great delay. Learned counsel by inviting my attention to the evidence of Hindu Singh Chundawat (PW-14), who conducted the test identification of the accused persons, has submitted that this witness has admitted in cross-examination (para-8) that he along with other witnesses Jagdish and Devilal who were required to identify the accused persons, together came in the jail premises and the Jailer first of all called those accused persons who were to be identified. Thereafter, other accused persons were also called and lastly those- accused persons who were required to be identified were mixed with similar type of other persons and therefore, if that would be the position, this