Virendra Kumar - (1.) THIS appeal has arisen against the conviction and sentences passed against the appellant under section 395 IPC. He was setenced to undergo imprisonment for seven years and 2,000/- rupees as fine, and in default of payment of fine for a further imprisonment for two months.
(2.) ACCORDING to the prosecution case, a dacoity was committed in the house of one Ram Chander, village Jarua, hamlet of Moradabad, P. S. Deva, District Barabanki in the night invtervening 28/29-8-84. In connection with the dacoity, the first information report was lodged and after that the accused-appellant was tried in connection with the charge framed against him under Section 395 IPC. The accused pleaded not guilty. The evidence against the appellant is that of identification. It appears from the judgment of the trial court that the appellant had surrendered before the Chief Judicial Magistrate on 19-1-85 in connection with this case, and sent to jail. The test indentification of the appellant was held in jail on 25-3-85. It is thus apparent that the test identification in respect of the accused was held after 24 months. As held in the case of Soni v. State of Uttar Pradesh, 1983 SCC (Criminal) 49, the evidence based on identification parade held after a lapse of 42 days from the date of arrest of the accused remains suspicious and not reliable. Consequently the evidence of identification which is only an incriminating evidence against the appellant is neither reliable, nor dependable. Further, in this case the evidence of identification against the appellant consisted of the testimony of 2 PWs, namely, Banshi Lal (PW 2) and Muneshwar (PW 4). At the test indentification parade, only these two witnesses have identified the appellant. They have also been examined as witnesses during the course of their trial. The testimony of PW 4 Muneshwar does not inspire confidence as he deposed lhat in the jail he placed his hand oh a person (at the time of test indentification parade) just on the basis of suspicion. He further stated that the correct thing is that he could not identify the accused-appellant before the Court on the date of his deposition. No doubt, he has also stated that at the time of identifying the accused- appellant in jail, the accused-appellant had threatened him This witness Muneshwar was declared hostile from the side of the State. In any case his evidence of identification in respect of the appellant does not inspire confidence. On excluding his evidence, the solitary evidence of identification which remains against the appellant, consists of PW 2 Banshi Lal. The single identification is not sufficient to inspire confidence and is not sufficient enough 10 warrant conviction.
(3.) THE result is that the conviction of the appellant cannot be upheld and he is entitled to acquittal. The appeal is allowed. The conviction and sentences of the appellant are set aside. He is to be released forthwith unless required in jail in connection with any other offence.;