SURAJ PAL ETC. ETC.versusSTATE OF HARYANA

                         SURAJ PAL ETC. ETC.                                A
                                 v.
                         STATE OF HARYANA

                          NOVEMBER 11, 1994

                 [G.N. RAY AND FAIZAN UDDIN, JJ.]                           B

     Criminal Trial

     Test identification parade-Object, Purpose and importance of when
 accused choose on their own volition not to stand test of identification
 without reasonable cause-Absence of text parade-Dock identification C
 whether should be accepted- Held, Yes, if otherwise found to be reliable.

      Indian Penal Code, 1860-Sections 3951396 r/ws 397 and 412-
 Dacoity with murders-Eye witnesses-Sufficient light at the place of
 occurrence to enable witnesses to see and identify miscreants-Accused
 declined to submit themselves for identification-Dock identification D
 reliable-Recovery of incriminating articles from possession of accused--
 Concurrent finding ofconviction-Sustainable.

      The three appellants were convicted u/ss 395/396 r/ws 397 of the
. Indian Penal Code and sentenced to undergo life imprisonment u/s
  396/397 and rigorous imprisonment for 10 years u/s 3931397 of the E
  Penal Code. They were further convicted u/s 412 of the Penal Code and
  each one of them was sentenced to undergo rigorous imprisonment for
  ten years. On appeal, the High Court agreed with the appreciation of
  evidence made by the trial Court and accepting the finding recorded
  by the Trial Court maintained the conviction and sentence awarded to
  the appellants. These appeals have been filed against the Judgments of F
  conviction recorded by the Courts below.

     According to the prosecution nine persons including the three
 appellants committed dacoity in a house in which two persons were
 murdered and their son was seriously injured.
                                                                            G
     After the arrest of the appellants, the prosecution wanted to hold
 an identification parade in which the eye witnesses had to identify them
 but the appellants declined to offer themselves for test identification
 without any reasonable basis.

     Consequently, the parade could not be held.                            H
                                   373
    374                    SUPREME COURT REPORTS           [1994) SUPP. S S.C.R.

A        The appellants were put on trial. The appellants were identified by
    the witnesses while they were in the dock. In pursuance of the
    disclosure statement, the appellants got discovered some incriminating
    articles. On analysing the evidence, Judgments of conviction were
    recorded.

B       In this appeal, the appellants urged that the incident had occurred
    in the mid night and there was no light at or around the place of
    occurrence in order to enable the witnesses to see the miscreants who
    had actually committed the dacoity. After a close scrutiny and on
    analysing the evidence the two courts have already recorded a finding
    that there was sufficient electric light in the house of deceased as well as
C   on the street which enabled the witnesses to see and identify the
    miscreants including the appellants.

         The appellants next submitted that the prosecution had not pressed
    the evidence regarding the i~entification of articles, said to have been
    seized from the appellants which rests entirely on the dock
D   identification of the appellants by the prosecution witnesses. It was
    further alleged that prosecution witnesses under the facts and
    circumstances Clf the case were not in a position to see and identify the
    miscreants including the appellants who were said to have committed
    the dacoity coupled with two murders. It was further contended that
    the evidence of these witnesses came to be recorded after five years
    and, therefore, in the absence of test identification parade it was not
    possible for these two witnesses to have remembered the description
    and features of the appellants so as to enable them to identify in the
    dock after such a long lapse of time. It was further submitted that the
    appellants were within their right in declining to submit themselves for
F   test identification parade and the two courts below were not justified
    in accepting the evidence on the basis of dock identification.

          Dismissing the appeal, this Court

        HELD 1.1 It is clear from the evidence that though the prosecution
G   was anxiously taking steps to hold the test identification parade the
    appellants themselves declined to submit themselves for test parade.
    They did so on their own risk for which the prosecution could not be
    blamed for not holding the test parade. There is absolutely no basis to
    say that the· appellants or any of them were shown to the witnesses. If
    the appellants in exercise of their own volition had chosen not to stand
H   the test of identification without any reasonable, cause, they did so on
         SURAJ PAL v. STATE OF HARYANA [FAIZAN UDDIN J.]             375

their own risk for which they cannot be heard to say that in the absence A
of test parade, dock identification was not proper and should not be
accepted, if it was otherwise found to be reliable. (382-H, 383-A-C)

    1.2. Considering the evidence of the eye witnesses it is clear that
there was sufficient light and they had enough opportunity to look at
and see the accused persons in the night of occurrence and, therefore, B
there was no difficulty for them to identify the appellants in the dock
during the course of their evidence. (383-D)

     1.3 So far as the recovery of incriminating articles from the
possession of the appellants is concerned, the same has been found to be
reliable and satisfactory. The High Court has discussed the evidence C
relating to disclosure statements and the seizures of these articles from
these two appellants and accepting the same recorded the finding that
the prosecution has proved the recovery of these articles from the
appellants immediately after the commission of the crime which have
been proved to be the articles belonging to the family of deceased. This
Court also scrutinised the evidence and found itself in agreement with D
the conclusions recorded by the High Court. (385-C-E)

    CRIMINAL APPELLATE JURISDICTION : ~riminal Appeal No.396
of 1983 etc. etc.

    From the Judgment and Order dated 5.5.82 of the Punjab and Harayana E
High Court in Crl.A.No.470-DB of 1981.

   R.L. Kohli, R.C.Kohli, Ms.Shirin Jain, for Ms Indu Malhotra, B.B.
Sawhney, for A.C.Gulati and Co. and R.K. Gupta for the appearing parties.

    The Judgment of the Court was delivered by
                                                                            F
     FAIZAN UDDIN J. 1. Since the two appeals as well as the Special
Leave Petition arise out of the common Judgment they are being disposed
of together. The three appellants namely, Suraj Pal Nathi and Puran
alongwith the co-accused Radha Raman Krishanbir and Pyare were charged
and tried under Section 395/396/397 and 412 of the Indian Penal Code by G
the Additional Session Judge, Gurgaon in Sessions Case no. 1 of 1979
(Sessions trial no. 7/1981 ). The learned Additional Session Judge convicted
the three appellants herein as well as the coaccused Radha Raman and
Krishanbir under Section 395/396 read with Section 397 of the IPC and
sentenced them to undergo life imprisonment under Section 396/397 and
rigorous imprisonment for 10 years under Section 395/397 of the Penal H
    376                    SUPREME COURT REPORTS          (1994] SUPP. 5 S.C.R.

A   Code. They were further convicted under Section 412 of the Penal Code
    and each one of them was sentenced to undergo rigorous imprisonment for
    two years. The co accused Pyare was acquitted for the offences under
    Section 395/396/397 of the Penal Code but he was convicted under Section
    412 and as he was found tuberculosis patient he was sentenced to undergo
    rigorous imprisonment for one year only. The three appellants herein as
B   well as Radha Raman and Krishanbir preferred an appeal which was
    dismissed by the High Court of Punjab and Haryana by judgment dated
    5.5.1982 being Criminal Appeal No. 470-DB/81 against which these three
    appeals have been preferred by the appellants Suraj Pal, Nathi and Puran.

         2. According to the prosecution nine persons including the three
c   appellants herein committed dacoity in the house of one Puran Chand in the
    intervening night of 5th/6th January 1976 at about 2.00 AM in village
    Kherla, Tehsil Nuh, District Gurgaon in which Puran Chand and his wife
    Ganga Devi were murdered and their son Gian Chand, PW 22 was seriously
    injured.

D        3. The prosecution case was that in the night of occurrence the
    deceased Puran Chand alongwith his injured son Gian Chand PW 22 were
    sleeping in t!1e Baithak (room) on the ground floor of their house while
    deceased Ganga Devi wife of Puran Chand and her daughter Usha Rani,
    PW 21 were sleeping in a room on the upper storey of the said house which
    is on the outer side and towards main gate of the compund of the house.
E   Another daughter Gita and wife of Gian Chand were also sleeping in
    another room in the upper storey. When the three appellants alongwith six
    other co-accused raided the house of Puran Chand in order to commit
    dacoity they pushed the door of the room in which Puran Chand and his son
    Gian Chand were sleeping. Puran Chand opened the door of his room and
    went' out into the courtyard when three of the dacoits opened an assault on
F   Puran Chand with lathies and pharsas and when his son Gian Chand, PW 22
    came out to rescue his father he too was also assaulted by the other ihree
    dacoits. In the meanwhile Usha Rani, PW 21 and her mother deseas.ed
    Ganga Devi also woke up and switched on the light of the room and tried to
    open the door of the room in which they were sleeping but found it to be
G   bolted from outside. Ganga Devi then opened the door of the window
    whicli opens in the compund of the house and as soon as she opened the
    door of the window, one of the dacoits who was standing at the main gate
    on the ground floor fired the gun at here which hit Ganga Devi on her
    forehead and she fell dead on the spot. Puran Chand and Gian Chand both
    raised an alarm which was heard by Tulsi, PW 8 and Sulekhan PW 23.
H   They rushed towards the house of the victims but on hearing the gun shots
         SURAJ PAL v. STATE OF HARYANA [FAIZAN UDDIN J.]            377

Tulsi, PW 8 took shelter against the wall of a house and saw the nine A
dacoits coming out from the Gali towards the house of Puran one of whom
was carrying a gun and bandolior around bis waist, Salekhan, PW 23,
however reached in front of the house of deceased Puran when gun shot
was fired which hit him in his Left thigh and therefore, he returned back.
Sulekhan again went to the house of Puran and found Puran lying dead on
the ground and Gian Chand in serious condition. He went to the upper B
storey and found Ganga Devi lying dead in the room in upper storey of the
house. Sulekhan went to the Pollice Station, Nuh same night where he
lodged the First Information Report, Ext, PHH about the incident at
3.15.AM on 6.1.1976 on the basis of which an offence under Section
395/396/397/460 of the Penal Code was registered.
                                                                          c
     4. After recording the first Information Report ASI Gurdial Singh PW
30 proceeded to the place of occurrence and immediately send injured Gian
Chand, PW 22 to the Primary Health Centre, Nuh for medical examination.
He also sent Sulekhan and one Hamida for Medical examination to the
Health centre. The Investigating Officer then prepared the inquest report
Ext. PG/3 and PF/3 of deceased Puran Chand and Ganga Devi respectively. D
He seized the blood from the place of occurrence as well as four empty
cartridges.

     5. Dr. M.L Lohraiya, PW 3 performed an autopsy on the dead body of
Ganga Devi on 6.1.1976 and found three multiple pellet marks over her
fore-head and face and pellets were also found embedded in the wound. E
The injuries were ante-mortem in nature. There was laceration of the brain
and haemorrhage in sub-frontal '1fea of the brain lobe. In the opinion of
the doctor the death was due to the injury to the brain on account of the
penetration of the pellets in· the same. Dr. Lohraiya, PW3 also performed
an autopsy on the dead body of Puran Chand and found several incised F
wounds on his person besides contusion and a punctured wound. All the
injuries were ante-mortem in nature and the death in the opinion of the
doctor was due to shock and haemorrhage.

    6. Dr. Ashok Kumar Jain, PW 4 examined the injured Gian Chand PW
22 on 6.1.1976 at 8.00 AM and found the following injuries on his P<:rson: G

    1. A contused wound over the right side of the head.

    2. Another contused wound on the left side of the head.

    3. A contused wound on left side of the face.                         H
     378                      SUPREME COURT REPORTS              [1994] SUPP. 5 S.C.R.

A          4. A contused mark around the eye with swelling.

           5. A contused mark over the back of left shoulder.

          6. A contused mark over the posterior medial aspect of right foreann
     with a contused wound up to the bone and the bone underneath seemed to
B    be fractured.

           7. A contused ·mark over back of the right hand,

         8. A contused wound over the first inter phalangeal joip.t pf midi:lle
     finger of right hand.
c          9. An abrasion over the ring finger of the right hand.

         I 0. A contused wound muscle deep over the posterior part of the. left
     elbow joint.

           I I. A contused mark over the back of left fore-iµm.
D
          I2. A contused wound skin deep in between the ring and little finger of
     the left hand.                                                        -

           I3. An abrasion over the front of right knee joint.

E        7. In fact the appellant Suraj Pal was arrested in another C!l$e in FIR
     No.8 dated 4. l.1976 under Sections 460 and 302 of the IPC by the Police,
     Hasanpur and then it was revealed that the dacgity fp questioQ. Wl!s
     committed by him and his other associates.             ·

         8. After his arrest Qn 5.3.)976 lhe appeUimt Sµraj Pal Wl\S intem>gated
F   by  the  Sµb-lnspector Sis Ram, PW 38 in !Pe presence of tll.e witness
    Sulenum. PW 29 who made a disclosure statement Ext.PHHtt. In pursu!lnce
    of the disclosure statement the appellant Suraj Pal got i:lisc0 vered an iron
    Kus which was. seized as per Ext.P 54 and quilt covers which were seized
    per Ext.P I4 and Ext.P ·5. After the arrest of the appellant Nathi, Pn
    interrogation by Sub-Inspector Khan, PW 36 on 3.6,1976 he made a
G disclosure statement Ext. PSR in the presence of witnesses Giim Ch!!.nd, PW
    22 and Suleman, PW 29 to the fact that he had pawned fpr Rs. ZOO a imree,
    two katories, two tumblers and one pant with one Hira Li!l, PW 30. The
    said articles were seized as per seizure memo Ext.P I 6, f:~t. P, I 7, E~t.P J8,
  · Ext. P .I 9, Ext.P 20 and Ext.P 2 I respectively on being produced by Iilra
    Lal alongwith the pledge deed which contained the descriptipn of all these
H articles. The appellant Puran was also interrogat~d on 3.6.1976 by Sub~
         SURAJ PAL v. STATE OF HARYANA [FAIZAN UDDIN J.]             379

Inspector Khan Chand, PW 36 who also made a disclosure statement Ext. A
PCCC in the presence of the witness Suleman, PW 29 to the fact that he had
pledged a ring with one Nanu Ram, PW 28 for a sum of Rs. 200 and ,in
pursuance of the said disclosure statement, the pledge deed and the ring
were seized from the possession ofNanu Ram PW 28 as per seizure memo
Ext. PFFF and Ext. P 26 respectively. Some articles were also seized on the
basis of disclosure statement of other accused persons which are not before B
us in these appeals and, therefore, it is not necessary to make a description
of the same.

     9. After the arrest of the appellants and other accused persons the
prosecution wanted to hold an identification parade in order to afford an
opportunity to the appellants and other accused persons to take part in the C
test parade in which the witnesses Usha Rani, PW 21, Gian Chand, PW 22
and Tulsi Ram, PW 8 had to identify them but the appellants and other
accused persons declined to offer themselves for test identification on the
ground that they were shown to the witnesses. The appellants made a
statement before the Executive Magistrate, Shri M.S.Rao, PW 1 and Sub- D
Divisional Magistrate, Shri l.D.Kaushik, PW 11 that since they were shown
to the witnesses they are not prepared to participate in the identification
parade. Consequently the parade could not be held.

     10. Thereafter the appellants and other accused were put on trial. The
appellants pleaded not guilty and claimed to be tried. They took the plea E
that they were falsely implicated on account of enemity and party factim
their respective villages. The appellant Suraj Pal filed several documents
which were marked as Exts. DA to DC which are copies of the applications
made to the Judicial Magistrate, Palwal making allegation that he jlad been
shown to the witnesses, There is also an application addresse!i to the
Inspector General of Police, Haryana stating that he was brought from F
Mathura to Palwal and was torchered. There is al~o an application
addressed to the Judicial Magistrate, Palwal complaining that third degree
methods were used against him with a view to extract confession. The
appellant Nathi had examined Harish Singh, DW l, Sarpanch of the village,
MLA Chandan Singh, DW 2 and Anand Singh, DW 3, the Civil Nazir of G
the Court of Sub-Judge, Gurgaon. The first two witnesses were examined
on the point that the appellant Nathi was a man of means owning
agricultural land and they never heard any complaint against him. The
third witness Anand Singh, DW 3 produced the record of disbursement of
diet money to show that Suraj Mal, PW 27, Suleman, PW 29 and Hira Lal,
PW 30 were stock witnesses of the police.                                   H
     380                    SUPREME COURT REPORTS           [1994] SUPP. 5 S.C.R.

A         I I. On analysing the evidence of the witnesses examined by the
     prosecution the trial Court convicted and sentenced the appellants and
     others as said above in the earlier part of this judgment. On further appeal
     by the appellants and other convicted accused the High Court agreed with
     the appreciation of evidence made by the learned trial judge and accepting
     the finding recorded by the trial Court maintained the conviction and
B    sentence awarded to the appellants herein against which these three appeal:;
     have been directed.

         I2. The learned counsel appearing for the appellants urged that the
    incident had occurred in the mid night and there was no light at or around
    the place of occurrence in order to enable Usha Rani, PW 2I, Gian Chand,
c   PW 22 and others to see the miscreants who had actually committed the
    dacoity and, therefore, the trial Court as well as the High Court have
    committed a serious error in accepting the prosecution evidence that these
    appellants were amongst the miscreants who were identified as such. After
    a close scrutity and on analysing the evidence the two courts below have
D also considered this contention and rejected the same by holding that there
    was sufficient electric light in the house of deceased Puran as well as on the
    street which enabled the witnesses to see and identify the miscreants .
    including the appellants. This finding is borne out from the evidence of
    Usha Rani, PW 21 and her brother Gian Chand, PW 22 who were the
  · inmates of the house and Gian Chand was severely thrashed by the dacoits.
E A perusal of the evidence of Usha Rani, PW 2 I goes to show that on
    hearing the alarm of the incident she and her mother deceased Ganga Devi
    both woke up and her mother switched on the light of the ro.om in which
    they were sleeping and opened the window of the room over looking the
    compou!ld and the street outside. Gian Chand, PW 22 deposed that at the
    time of occurrence the electric light of the courtyard as well as that of the
F varandah of the house and the street light were on. He also deposed that the
    light of one of the rooms in the upper storey was also on. Not only this but
    Tulsi Ram, PW 8 who resided near the house of Puran had rushed towards
    the house of Puran on hearing the Raula but kept away and witnessed the
    incident by hiding himself against a wall near the house due to fear to his
G   life and limb as gun shots were being fired has also testified the presence
    of enough light. He deposed that at the time of occurrence electric light on
    the street was on and he saw the nine miscreants coming from the street
    leading to the house of deceased Puma Chand and one of the miscreant
    was carrying gun and bandolior. It is thus clear that there was sufficient
    electric light in order to enable the witnesses to have a full view of the
H miscreants including the three appellants.
          SURAJ PAL v. STATE OF HARYANA [FAIZAN UDDIN J.]               381

      13. Learned counsel for the appellants next submitted that the A
 prosecution had not pressed the evidence regarding the identification of
 articles said to have been seized from the appellants as the Sarpanch Bhobal
 who held the test identification was not examined as a witness by the
 prosecution and the evidence of Sulekhan, PW 23 with regard to some of
the articles was found to be unacceptable and, therefore, the conviction of
 the appellants rests entirely on the dock identification of the appellants by B
 the prosecution witnesses. Learned counsel made a vociferous attack on the
 findings recorded by the two courts below by contending that Usha Rani,
 PW 21 and Gian Chand, PW 22 under the facts and circumstances of the
 case were not in a position to see and identify the miscreants including the
 appellants who are said to have committed the dacoity coupled with two
 murders. It was urged that Usha Rani, PW 21 was in the upper storey and C
 according to the prosecution evidence after her mother was shot dead and
when she tried to peep outside from the window she was warned by the
 miscreants or she should keep herself inside otherwise she will also meet
the same fate and, therefore, she could not have dared to look outside and
see the miscreants or the appellants or any of them. Regarding Gain Chand,
 PW 22 the learned counsel submitted that he had sustained so many injuries D
on his person that he fell unconscious and, therefore, it was not possible for
him also to see the dacoits in order to enable him to identify them later
during the investigation or in the Court while the appellants were in the
dock. It was further contended that the incident had occurred in January,
 1976 and evidence of these witnesses came to be recorded after five years E
and, therefore, in the absence of test identification parade it was not
possible for these two witnesses to have remembered the description and
features of the appellants so as to enable them to identify in the dock, after
such a long lapse of time. It was further submitted that the appellants were
within their right in declining to submit themselves for test identification
parade and legally they could not be compelled to submit themselves for F
the test parade. It was, therefore submitted that the two courts below were
not justified in accepting their evidence on the basis of dock identification.

      14. Before dealing with the various contentions advanced by the
 learned counsel for the appellants as referred to above, we shall first state
the object, purpose and importance of the test identification parade. It may G
be pointed out that the holding of identification parade has been in vogue
since long in the past with a view to determine whether an unknown person
accused of an offence is really the culprit or not to be identified as such by
those who claimed to be the eye witnesses of the occurrence and that they
would be able to identify the culprit if produced before them by recalling
the impressions of their features left on their mind. That being so, in the H
     382                    SUPREME COURT REPORTS            [1994) SUPP. 5 S.C.R.

A   very nature of things, the identification parade in such cases serves the dual
    purpose. It enables the investigating agency to ascertain the correctness or
    otherwise of the claim of those witnesses who claimed to have seen the
    offender of the crime as well as their capacity to identify him and on the
    other hand it saves the suspect from the sudden risk of being identified in
    the dock by such witnesses during the course of the trial. This practice of
B test identification as a mode of identifying an unknown person charged of
    an offence is an age old method and it has workeJ well for the past several
    decades as a satisfactory mode and a well founded method of criminal
    jurisprudence. It may also be noted that the substantive evidence of
  . identifying witness is his evidence made in the C<;>urt but in cases where the
    accused person is not known to the witnesses from before who claimed to
c   have seen the incident, in that event .identification of the accused at the
    earliest possible opportUnity after the occurrence by such witnesses. is of
    vital importance with a view to avoid the chance of his memory fading
    away by the time he is examined in the Court after some lapse of time.

          15. In the present case it may be noted that the appellant Suraj Pal was
D    arrested on 5.3.76 and was admittedly brought from Mathura Jail to Palwal
     Sub-Jai.l by the police of Hassanpur as another case against him was
     registered in that Policed Station. An application Ext. PA was moved by
     the Sub - Inspector Sis Ram, PW 38 to the Sub-Divisional Magistr'lte on
      17.3.76 for his identification while the appellant Suraj Pal was already in
     judicial lock up. This application was marked to the Executive Magistrate
E    on 17.3.76 itself and the Executive Magistrate fixed 23.3.76 as the date for
     identification of the appellant Suraj Pal. But when the Executive Magistrate
     Shri M. S.Rao,YW l went to the sub-jail, Palwal where the Appellant Suraj
     Pal was lodged, the appellant Suraj Pal tendered him an application Ext.
     PA/3 declining to get himself identified on the ground that he had been
     shown to the witnesses. The appellants Nathi and Puran alongwith some
F    other co-accused were also lodged in Palwal Sub-Jail by the Mathura
     Police. On 24.5. 76 an application Ext. PC was made to the Sub-Divisional
     Magistrate, Palwal for holding the identification parade of the appellants      •
     Nathi, Puran and the Co-accused Krishnabir. This application was also
     marked to the Executive Magistrate, Shri M. S. Rao, PW l who fixed the
G    holding of identification parade at 5.00 PM same day in the Palwal Sub Jail
     but Shri Rao for some reason could not hold the parade. Conseql!ently the
     Sub- Divisional Magistate, Shri Kaushik, PW 11 himself went to the Palwal
     Sub-Jail next day but appellants Nathi and Puran and the co-accused
     Krishanbir declined to stand the test of identification. Their statement to
     that effect was recorded by Shri Kaushik, PW 11. It is thus clear from this
H    evidence that though the prosecution was anxiously taking steps to hold the
         SURAJ PAL v. STATE OF HARYANA [FAIZAN UDDIN J.]              383

test identification parade but the appellants themselves declined to submit A
themselves for test parade. It is true that they could not have beeen
compelled to line up for test parade but they did so on their own risk for
which the prosecution could not be blamed for not holding the test parade.
The reason given out by the appellants for declini~g to stand the test of
identification was that they were shown by the police to the witnesses but
this allegation has been found to be baseless and unfounded by both the B
Court below. We have perused the evidence in this behalf and find that
there is absolutely no basis to say that the appellants or any of them were
shown to the witnesses. If the appellants in exercise of their own volition
had chosen not to stand the test of identification without any reasonable
cause, they did so on their own risk for which they cannot be heard to say
that in the absence of test· parade, dock identification was not proper and C
should not be accepted, if it was otherwise found to be reliable.

     16. Now adverting to the evidence of the eye-witnesses it is clear from·
the statement of Usha Rani, PW 21 and her brother Gian Chand, PW 22 that
there was sufficient light and they had enough opportunity to look at and
see the accused persons in the night of occurrence and, therefore, there was D ·
no difficulty for them to identify the appellants in the dock during the
course of their evidence. Gian Chand, PW 22 was sleeping in the Baithak in
the ground. floor of the house where his deceased father Puran was also
sleeping. He deposed that they had retired to bed at about 9. 30 PM after
bolting the door of their room from inside. He also stated that the main gate
of the house was also bolted. Deceased Ganga Devi, the mother of Gian E
Chand and his sister Usha PW 21 had slept in a room on the upper storey
and his wife Mithilesh Kumari alongwith his other sister were sleeping in
another room on the upper storey when at about 2.00 AM in the night the
miscreants pushed the door of the room in which Gian Chand and his father
Puran were sleeping. Gian Chand deposed that his father Puran woke up, F
opened the door and as soon as he went out in the courtyard he was
attacked by three miscreants who opened an assault on his father with
lathies and pharsa and when Gian Chand, PW 22 himself came out to
rescue his father, three other miscreants attacked him. He further deposed
that one of the miscreants was standing at the main gate of the house having
a gun with him who was of dark complexion, well built and wearing a red G
turban. He also stated that the electric light in the varandah and courtyard
were on and so also the street light. Gian Chand also stated that after he was
seriously injured he went back in the Baithalk (room) and fell on a cot. He
stated that the miscreants fired the gun shorts one of which had hit his
mother. The dacoits broke open the locks and removed the articles from the
house and after they left the house, the village folks came to their house. He H
    384                    SUPREME COURT REPORTS           [1994] SUPP. 5 S.C.R.

A   a1so identified the appellants herein and others who were facing the trial to
    be the miscreants who had committed the murder of his parents and
    committed the dacoity in his house. He identified the articles seized from
    the appellants as belonging to his family. Gian Chand, PW 22 had seen the
    miscreant in electric light when three of them were assaulting his father.
    Thereafter he himself assaulted by other three miscreants. The number of
B   injuries on his person go to show that he was thrashed and battered for quite
    some time and he had sufficient time and opportunity to look at the dacoits.
    It was, therefore, not difficult for him to identify the appellants with the
    lasting impression that was left on his mind.

          17. The second eye-witness of the occurrence is Usha Rani, PW 21.
c   She deposed that she alongwith her mother was sleeping in the upper storey
    of the house when at about 2.00 AM of the night of occurrence they woke
    up on hearing the noise ( Raula) created by the dacoits. She stated that her
    mother deceased Ganga Devi put on the light of the room and tried to open
    the door but it was found to be bolted from outside. Ganga Devi then
    opened the door of the window which opened in the compound of the
D   house. She deposed that the dacoit standing at the main gate of the
    compound on the ground floor fired his gun which hit on the forehead of
    her mother as a result of which she died on the spot. Usha Rani further
    deposed .that thereafter when she peeped through the window the same
    person carrying the gun and standing near the main gate of the compound
    commanded her to go back and sit quietly otherwise she would also meet
E
    the same fate. This part of the evidence of Usha Rani was attacked by the
    learned counsel for the appellant by contending that after her mother was
    shot dead it was unprobable that Usha Rani would have . dared to peep
    outside endangering her own life and this part of the evidence has been
    introduced by the prosecution in order to show that the witness had seen the
    miscreant:; so that she may identify the miscreants at a later stage. We are
    unable to accept these submissions. In our opinion when the witness had
    sensed that the dacoits had raided and ransacked the house and her mother
    was shot dead it was quite natural for the witness to look around and see
    what was happening there in order to take stepc.; to escape and save her own
    life.
G
         18. The criticism of the learned counsel for the appellants that no
    description of features and particulars of the dacoits was given in the FIR
    which goes to show that there was no light and the witnesses had not seen
    the dacoits and, therefore, it was not pos.sible for them to identify. Hence
    the dock identification should be rejected on this account. We are unable to
H   pursuade ourselves to accept this contention also for the reason that
          SURAJ PAL v. STATE OF HARYANA [FAIZAN UDDIN J.]                  385

admittedly the FIR Ext. PHH was lodged by Sulekhan, PW 23 who had not A
seen the entire occurrence. According to the evidence of Sulekhan, PW 23,
on hearing the Raula in the night of occurrence when he proceeded towards
the house of Puran Chand someone fired a gun-shot which hit him on his
thigh and, therefore, he hide himself and went to the house of Puran only
after the miscreants gone away. In these circumstances Sulekhan, PW 23
who lodged the FIR could not have given the details and description of the B
features of the dacoits. As regards the presence of light at the time and
place of occurrence we have already discussed and found that there was
enough light there.                     ·

      19. This brings us to the question of recovery of incriminating articles
from the possession of the appellants. The appellant Suraj Pal, as said           C
earlier, on his disclosure statement quilt covers Ext. P-14 and Ext. P-15 are
said to have been seized at his instance. But the Trial Court as well as the
High Court found that there is some discr~pancy in the evidence with
regard to the two articles and therefore, both the courts below did not feel it
safe to rely on this part of the evidence with regard to these two items. But
so far as the recovery of incriminating articles from the possession of the       D
appellants Nathi and Puran is concerned, the same has been found to be
reliable and satisfactory. The appellant Nathi had pawned the stolen articles
with Hiralal, PW 30 which were seized from Hiralal at the instance of the
appellant Nathi. Similarly the appellant Puran had pledged the stolen
articles with one Nanu Ram, PW 28 which were seized from Nanu Ram at
the instance of Puran alongwith the pledge deeds. The High Court has              E
discussed the evidence relating to disclosure statements and the seizures of
these articles from these two appellants at length in para 16 of the Judgment
and accepting the same recorded the finding that the prosecution has proved
the recovery of these articles from the appellants immediately after the
commission of the crime which have been proved to be the articles                 F
belonging to the family of deceased Puran Chand. We have also scrutinised
the evidence and find ourselves in agreement with the conclusions recorded
by the High Court.

    20. In the light of the aforesaid discussion we find that there are no
grounds to interfere with the conclusions recorded by the two Courts below G
with regard to the three appellants before us and, therefore, the two appeals
and the Special Leave Petition deserve to be dismissed and the sanie are
accordingly dismissed.

A.G.                                         Appeals and petition dismissed.