- (1.) This is a criminal appeal against the judgment and order dated 27/10/1979 passed by the then learned IV Additional Sessions Judge, Ballia, in Session Trial No. 149 of 1976 State v. Shri Ram, convicting the appellant-accused under S. 395, I.P.C. and sentencing him to six years rigorous imprisonment.
(2.) The dacoity in question was committed in the night intervening 9/ 10/12/1975. The appellant-accused Shri Ram was arrested on 6-1-1976. He was put up for identification in the test parade on 2-3-1976. There was occurred a delay of 56 days in, holding the test identification parade. It is on the basis of all this that the learned counsel for the appellant-accused has vehemently argued that this delay casts doubt as to the genuineness of the identification parade and therefore, the appellant-accused is entitled to be acquitted for this reason alone. He has, for this purpose, placed reliance upon "Soni v. State of U.P.", reported in (1982) 3 SCC 368 (1), wherein the Hon'ble Supreme Court has made observations as under :- "The conviction rests purely upon his identification by five witnesses, Smt. Keeri, Pritam Singh, Kewal, Chaitee and Sinru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of 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. If 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."
(3.) The appellant-accused resides in village Jai Nagar, which is at a distance of two miles from the village Vyaspur of which Rama Shanker Tewari PW 5 is a resident. This is clear from the statement of Rama Shanker Tewari himself. Therefore, the learned counsel for the appellant-accused has argued that there is every possibility of the appellant-accused having been seen by the witnesses from before the dacoity. His contention has substance in view of the decision in "Asharfi and Ramdhan (appellant) v. State of U.P. (respondent), reported in 1960 AWR 440".;