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7. Heard learned counsel for the accused-appellants as well as the learned Public Prosecutor and scrutinized the material available on record.

8. It was contended by the learned counsel for the appellant that in the present case after long lapse of time the test identification parade was held, therefore, it was not possible for PW5 Nandram to have identified the accused persons. It was also contended that no description of the culprits was given in the Parcha Bayan Ex. P/12 and also there was no mention of the fact that the accused appellants were seen in the light of the truck. The learned counsel submitted that it was only mentioned in the Parcha Bayan Ex. P/12 that the accused were between 25 and 30 years of age.

9. On the other hand, learned Public Prosecutor submitted that it was mentioned in Ex. P/12 that PW5 Nandram identified the persons who inflicted injuries to him and he would identify when they would be brought before him.

10. I have considered the above submissions made before me.

11. In the instant case, the incident as per the Parcha Bayan Ex.P/12 is alleged to have taken place on 8-12-2000. It was month of December and the incident had taken place after 7.30, p.m. The accused persons; namely, Sucha Singh, Desh Raj and Narayan Singh were arrested through memos Exs.P/27, P/28 and P/29 respectively A11 the three accused were arrested in the month of April, 2003 after obtaining production warrant as they were in jail. Accused Sucha Singh and Desh Raj were arrested on 5-4-2003 whereas accused Narayan Singh was arrested on 6-4-2003. Thus, it appears that the accused persons were arrested after nearly two years and four months of the incident. Their identification test was conducted by PW 11 Shri Yogendra Purohit. He has stated that on 9-4-2003 while posted as Addl. Chief Judicial Magistrate, Sri Ganganagar, he conducted the identification test on the police requisition submitted by PW9 Shri Tarsem Ram. He has stated that Ex.P/33, a requisition was submitted for identification of accused-appellants by PW9 Tarsem Ram on 9-4-2003 and on the back of the police requisition the test identification parade was fixed but on that day test parade could not take place then it was fixed on 19-4-2003 in the District Jail at about 5 p.m. He has stated that test identification memos Exs. P/16, P/17 and P/18 were prepared by him in relation to accused Sucha Singh, Deshraj and Narayan Singh. In the cross-examination he has stated that accused had told him that in the Police station their photographs were taken. Whatever accused stated, he made a mention in column No. 10 of Ex.P/16 to P/18. Exs. D/2, D/3 and D/4 are the remand sheets. By these remand sheets there appear no instructions to keep the accused Baparda. P.W.9 Tarsem Ram conducted investigation in the matter. He has admitted in his cross-examination that in the remand forms Exs.D/2, D/3 and D/4 there is no note available to the effect that the accused were required to be kept Baparda. He has also admitted this fact that in the remand form it was not mentioned that the accused were kept Baparda and produced before the Magistrate Baparda. In the cross-examination, he has also stated that all the accused were sent to judicial custody on 8-4-2003 and before they were sent to judicial custody, the recovery was effected on the basis of their disclosure statements. The matter regarding disclosure statement made by the accused persons and the recovery made in pursuance of the disclosure statement will be discussed at appropriate place in this judgment.

14. Ex.P/12, the Parcha Bayan does not give description as to what was the complexion of the accused persons, what their height was or built up and the faces etc. Ex. D/1 is the police statement of PW5. In that police statement also it has not been mentioned that he could identify the accused persons when brought before him. PW5 is injured and through Parcha Bayan Ex.P/12, First Information Report Ex.P/26 was registered. PW5 Nandram, in his Court. statement has stated that on 8-12-2000 he was employed as FC in S.P. Office, Sri Ganganagar and on that day he had gone to meet his niece who was admitted in Tantia Hospital and while coming on motorcycle from hospital at about 7.30 p.m. when he reached at Pucca Road .between Takhathazara Gurudwara and Sadul Sahar, a person gave him signal to stop and he stopped the motorcycle and thereafter two persons suddenly came from the dark. Out of those two persons, one was having an axe in his hand and the other person had removed his helmet. The person who was having art axe in his hand, gave axe blow on his head. He has further stated that scuffle took place at that time as one of the persons tried to remove his helmet and he saw the faces of accused in the headlight of a truck which was passing through the road. He has also stated that he was dragged in the bushes. The accused then took away his purse, wrist watch and a gold bangle which was worn on his right hand. The witness had identified the accused persons in the Court. It is relevant to mention here that in Parcha Bayan Ex.P/12 there is no mention of this important fact that in the headlight of a truck the faces of the accused were seen Injured PW5 Nandram is in police employment and he knows the pros and cons of a statement. He has stated that though he has given statement to that effect while his Parcha Bayan was recorded but he does not know as to why that fact was not mentioned in the Parcha Bayan. In the cross-examination he has admitted that the same fact was missing in his police statement Ex.D/1. The rest of the cross-examination and the statement is not relevant for the purpose of identification of the accused persons. The important aspect is that in Ex.P/12 there is no description of the accused persons as to what was their built up and complexion. There is no mention of the headlight of a truck in which the faces of accused were seen. The test identification parade was held after two years and four months from the time of incident. Thus, in my opinion, when the accused we're arrested and their test identification was done, there had been no instructions to keep them Baparda and further in the remand forms Ex.D/2 to D/4 there is no mention that the accused was kept Baparda then it becomes rather doubtful that as to whether the injured in dark was able to see the faces of the accused who are subsequently said to have been identified.

18. In view of the guidelines regarding appreciation of evidence in the matter of test identification parade, the Hon'ble Supreme Court has clearly observed that though there is no proposition of law like that that a test identification parade if it is delayed, it cannot be relied upon but what is required is that in such matters the Courts are required to scrutinize the evidence cautiously. It has also been observed by the Apex Court that it could be a reason which may create doubt. In the instant case, the evidence regarding keeping the accused persons Baparda before test identification of accused is missing as admitted by PW9 Tarsem Ram. Further, there is no description of the faces of the accused, their height etc. then it is difficult to presume that PW5 was having an opportunity to correctly remember the faces of the accused particularly in the circumstance when it was dark and there was no light. PW5 injured Nandram though has stated in his statement that he could see the faces of the accused persons in the headlight of a truck passing through the road, this important piece of statement is missing in his Parcha Bayan Ex.P/12 as well as in his police statement Ex.D/l.