Surya Prasad - (1.) THESE are three criminal appeals against the judgment and order dated 10-3-79 passed by the then VI Addl. Sessions Judge, Saharanpur in Session Trial No. 324 of 1977 State v. Rakesh and Rajendra and Session Trial No. 437 of 1977 State v. Shabbir, convicting the appellants under section 396 IPC and sentencing them to ten years rigorous imprisonment and a fine of Rs. 4000/- each and in default further rigorous imprisonment for one year.
(2.) THE facts of the case have been vividly given by the learned Additional Sessions Judge in his impugned judgment and order. THEre does not appear any necessity of repeating the same. Heard learned counsel for the parties at length and perused the record. The incident is said to have taken place in the night intervening 6th and 7th February 1975 at 3.00 A.M. The first information report was lodged on 7-2-75 at 4.20 A.M. There is none named as an accused in the first information report. All the three appellants accused were arrested on 16-2-75 in the night intervening 17th and 18th February 1975. They were kept at the police station Sasani district Aligarh. Hasim Ali (PW 1) is the informant and driver of the bus in question. He could not be able to identify any of the accused at Aligarh. PW 6 has turned hostile. He has admitted that he had gone to Aligarh to identify the accused. He had come to know 10 or 11 days after the incident that the accused were arrested. He appears to be a pocket witness of the police. Laxmi Chand (PW 2) could not identify the accused in the Court. Babu Ram (PW 3) could not correctly identify the dacoits in the Aligarh Jail. Khairati (PW 4) cannot tell as to who of the dacoits were present in the court. Bishambhar Singh (PW 5) has given vacillating statements indicating his presence doubtful on the spot.
(3.) THEREFORE, the statements of the above named witnesses do not inspire confidence. The appellants accused were put up for identification after about 56 days from the date of the incident; and after about 47 days from the date of their arrest. It is on this basis that the learned counsel for the appellants has argued that the conviction cannot be maintained. For this purpose he has placed reliance upon Soni v. State of Uttar Pradesh, 1982 (3) SCC 368, wherein the Honourable Supreme Court has observed as under : "After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. The conviction rests purely upon his identification by five witnesses, Smt. Koori, Pritam Singh, Kewal Chaitoo and Siir.ru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. In this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the appellant. We therefore allow the appeal and acquit the appellant." ;