On 15.11.1989, i.e., after the lapse of about 1 month and 10 days they were put up for test identification parade whereat Ajay Kumar PW 5, Awadh Bihari Prasad PW 4 and Shyam Bihari Prasad PW 2 identified these two accused appellants as those who had participated in the incident of dacoity.
Similarly, accused Krishna Choudhary was put up for test identification parade after a delay of 1 month and 20 days from the date of his arrest.
On 10.6.1989 the investigating officer moved an application before the judicial magistrate first class for declaring the accused persons as absconding and for issuance of warrant of arrest against the accused persons.
The fact that there was a dacoity which took place on 5.3.1989, at about 6 p.m., at Baidrabad Bazar within Arwal police station of district Jehanabad is number disputed by the learned amicus appearing for the accused appellants.
Firstly, Sona Pasi and Nirmal Baheliya, the two accused appellants were put up for identification after a delay of about 1 month and 10 days from the date of their arrest.
He was identified by Shyam Bihari Prasad PW 2, Parmeshwar Dayal PW 3 and Awadh Bihari Prasad PW 4.
The learned sessions judge and the High Court have believed the identification of the accused persons by the witnesses as abovesaid and rested the finding of guilt thereon.
The investigating officer had initiated proceedings under Sections 82 83 of Cr.
He was put up for test identification parade on 15.3.1990, that is after a delay of about one month and 20 days.
Krishna Choudhary, the third accused surrendered on 26.1.1990 whereafter he was arrested.
Nirmal Baheliya and Sona Pasi, the accused appellants, surrendered on 5.10.1989.
Secondly, the accused appellants have voluntarily surrendered and their surrender was preceded by the initiation of proceedings for declaring them as absconding offenders.
Neither any article said to have been stolen in the incident of dacoity or any weapon allegedly used in the dacoity has been recovered from any of the accused persons.
For the several reasons stated hereinafter, we are of the opinion, that the evidence of identification cannot be relied on to base the finding of guilty against the accused persons.
The learned magistrate allowed the application and initiated the proceedings by issuance of warrants of arrest.
These prosecution witnesses similarly identified the accused appellants in the companyrt also.
Here itself it may be stated that one Krishna Choudhary was also tried as companyaccused with the two accused appellants on the same charge and was companyvicted.
On appeal, the companyviction and sentence have been maintained by the High Court.
The accused appellants have preferred this appeal by special leave.
In his submissions there is numberreliable evidence available on record to hold that the accused appellants had participated in the incident.
However, he has seriously disputed the involvement of the accused appellants in the incident.
The incident is dated 5.3.1989.
His appeal before the High Court also failed.
Nothing has been placed on record to show as to how the suspicion of the investigating officer had fallen on these three accused persons and what had persuaded him to form an opinion as to the involvement of these three accused persons in the offence of dacoity so as to treat them as absconding offenders.
They were arrested.
However, he has number pursued the matter before this Court.
P.C. against the three accused persons by naming them.
