Paragraph numbers below are the court’s original numbering, recovered from the source text.
13. As noticed earlier, test identification parade was o conducted in jail on 15.11.1979 by PW6-Special Executive Magistrate in which the witnesses PW1, PW2 and PW3 identified the accused. As far as test identification parade is concerned, it is relevant to note that accused-Kripa has contended that he had been falsely implicated in the case E because of the rivalry with Rampa! Singh and his maternal uncle Mangeram. Accused-Kripa also pleaded that the witnesses knew them as they were living in nearby villages and because of rivalry, they were being falsely implicated in the case. So far as appellant No.2-Khurshed and another F co-accused-Kish nu are concerned, they had stated that they were arrested by the police from their houses and they were shown to the witnesses at the police station and they were also photographed before holding test identification parade.
14. Even though the complainant-PW1 and other witnesses have denied the defence plea, in the light of the fact that the incident occurred in the pitch of darkness, the identification of the appellants by the witnesses has to be viewed with caution and the court is to look for corroboration H strengthening the identification. IQBAL AND ANOTHER v. STATE OF UTTAR PRADESH [R. BANUMATHI, J.]
15. Evidence of identification of the miscreants in the A test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject matter of dacoity and the alleged weapons used in the commission of the offence.
16. It is pertinent to note that in the present case no C recovery of articles which are the subject of dacoity was made from the appellants or other non-appealing accused persons. In his complaint, PW1 gave a list enumerating fifty expensive items,' such as gold jewellery, silver articles, sarees and clothes and also cash. As per the recovery memo, what was D recovered was just three kilograms of ghee in a clay pot. In his deposition, PW8-Nepal Singh (investigating officer) has stated that at the instance of Kripa, he had recovered a 'chaptaghu' and an 'attire'. However, in the recovery memo, only three kilogram of ghee is mentioned which is said to E have been recovered on the disclosure statement of accused Kripa. From the appellants as well as from the non -appealing accused persons, not a s,ingle item of valuable out of the whole list of stolen articles was recovered. It is quite F unbelievable that within a short span of time i.e. from 21.09.1979 (date of incident) to 9.10.1979 (date of arrest), the accused would have converted or sold out all the valuable items. Even if we accept that they had done so, the prosecution ought to have adduced evidence as to how and G in what manner the articles which were the subject matter of dacoity were either disposed of or converted. Murder and robbery were part of the same transaction. Consequent upon the disclosure statement, only three kilograms of ghee was recovered.
17. In order to bring home the guilt of the accused persons, it is the duty of tlie prosecution to prove that the stolen property was in the possession of the accused persons or that the accused had knowledge that the property was a stolen property or the accused persons had converted the B stolen property. No such recovery was made to connect the appellants and other non-appealing accused persons with the crime.
18. In the trial court, on behalf of some of the accused C persons, a plea was taken that some of the accused were known to the witnesses and that the accused are resident of Jayee village and Buksar village and are doing cultivation and that the accused are known to the witnesses. The prosecution witnesses having known to the accuse_d earlier, D the witnesses are residents of village Etmadpur and used to take the bus at village Jayee and at villagel<hajoori bus stand. The courts below observed that the identification of the appellants cannot be discarded merely on the ground that the appellants and accused Kishnu reside in the village E Buksar and that the witnesses knew the accused long before. The accused could not adduce evidence to substantiate the defence plea that the prosecution witnesses had known the accused earlier. Non-adducing of evidence to substantiate F the defence plea by the accused seems to have substantially weighed in the mind of the trial court to accept the prosecution case.
19. Courts below based the verdict of conviction solely on the oral testimony of PW1 to PW3 and the identification G of the appellants and other non-appealing accused in the test identification parade. As discussed earlier, in the absence of any other evidence like recovery of stolen jewellery or other articles strengthening the prosecution case, conviction H cannot be based solely on the identification of the accused in IQBAL AND ANOTHER v. STATE OF UTTAR PRADESH [R. BANUMATHI, J.) the test identification parade. Serious doubts arise as regards A identification of the accused regarding complicity of the appellants in the commission of dacoity and their identification by the witnesses and the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and in our view, the conviction of the appellants under Section 396 IPC cannot B be sustained and is liable to be set aside.
20. Conviction of the appellants under Section 396 IPC and the sentence imposed on them is set aside and this appeal is allowed. The appellants are ordered to be set at liberty C forthwith unless they are required in any other case. Kalpana K. Tripathy Appeal allowed.