Surya Prasad, J. - (1.) This is a criminal appeal against the judgment and order dated 27th October, 1979 passed by the then learned IV Additional Sessions Judge, Ballia in Session Trial No. 149 of 1976 State v. Shri Ram and others, convicting the appellant-accused under section 395 I.P.C. and sentencing him to six years Rigorous Imprisonment.
(2.) The dacoity in question was committed in the night intervening 9110th December, 1975. The appellant-accused Shri Ram was arrested on 6.1.1976. He was put to 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 UP., wherein the Honble Supreme Court has made ,observations as under: The conviction rests purely upon his identification by five witnesses, Smt. Keen, Pritam Singh, Kewal, Chaitoo 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 remand being 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 Sagar, which is at a distance of two miles from the village Vyaspur of which Rama Shanker Tewari P.W. 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 v. State of UP. In the result the appeal is allowed. The impugned judgment and order are set aside. The appellant is on bail. His bail bonds are cancelled and sureties stand discharged. He need not surrender. Appeal allowed.;