- (1.) S. N. Saxena, J. Heard the learned counsel for the appellant and the learned AGA who agree that if this Court so finds proper, this appeal may be decided on merits.
(2.) ACCORDING to the learned counsel for the appellant, he already had undergone the sentence of seven years but even then has not been released from jail. He has filed evidence to show that the aforesaid sentence has been carried out and the contention appears to be correct also. It is therefore, unnecessary to keep him inside the jail,, rather it is an illegality of serious nature if in spite of his having served out the sentence, he continued to be behind the bars. Coming now to the merits of the case also, I find that he was wrongly convicted and sentenced by the learned lower court. He allegedly had participated in a dacoity during the night intervening 22/23rd April 1974 at about 11 or 11. 30 p. m. alongwith seven or eight compa nions. A few of his companions were tried and acquitted earlier in different sessions trials. He, ' however, was arrested by police in the night intervening 16/17th June, 1974 at about 1 a. m. and the test identification proceedings were got conducted by the investi gating agency as late as on 21-10-1974 without explaining the reason of the inordinate delay. He, thus, in all, was put for test identification after about six months of the incident. Learned counsel for the appellant con tended that the test identification proceedings after six months of the incident were nothing more than a farce due to which reliance should not have been placed upon the. same by the learned lower court. In support of this submission, he relied upon a decision of Hon'ble Supreme Court reported in 1987 (24) ACC 501-Subash and Shiv Shanker v. State of V. P. , in which it was held that the delay of three weeks only between the arrest of the suspect and his test identification proceedings in the jail in the absence of any explanation for the delay, had rendered the test identi fication proceedings unworthy of credit and there was room for doubt as to whether the delay in holding the test identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features. In the aforesaid decision, the Hon'ble Supreme Court had further observed that a period of nearly four months had intervened between the date of the occurrence and the holding of the test identification proceedings of the suspect in the jail due to which also it was difficult to accept the contention that in spite of this interval of time, the witnesses were able to have clear image of the accused in their mind and identified him correctly at the identification parade.
(3.) THE case of the appellant stands on a much stronger footing, as the period between the date of the occurrence the holding of the take identification proceedings was about six months and about four" months in between the date of his arrest and the holding of the test identification proceedings. THEre being no explanation at all of the inordinate delay on the part of the prosecution, the evidence of identification against the appel lant, was unworthy of credit and should have been disbelieved by the learned lower court. In view of this state of affairs, it was not neces sary to enter into other questions involved in this appeal, which was liable to be allowed. The appeal is allowed. The impugned judgment and order of the lower court are set aside and the appellant is acquitted of the charge levelled against him. He is in jail and shall be released forthwith if not wanted in any other case. Appeal allowed. .;