D.L. Mehta, J. - (1.) This appeal is directed against the judgment dated 14-12-1978 and the order dated 19-12-1979, passed by the learned Addl. Sessions Judge, No. 1, Alwar, in Sessions Case No. 10/1979, convicted and sentenced the accused appellant as under : U/S. 458 IPC to 4 years R. I. and a fine of Rs. 200/- in default of payment of fine to undergo further R. I. for one month. Under S. 394 read with S. 397 IPC to undergo 7 years R. I. and a fine of Rs. 200/-, in default of payment of fine to further undergo one month's R. I. Both the sentences were directed to run concurrently.
(2.) The prosecution story unfolded during the trial is that on the intervening night of 3rd and 4th August, 1978, some persons entered into the house of Ramswaroop P. W. 5 and he was sleeping with his wife Mst. Atri. The accused person tried to remove Kada which she was putting on. When accused tried to remove the Kada, she cried, there-after accused ran away. P. W. 3, Sampat scaled on the wall and he saw the accused in the light of the torch while running. In the instant case, 5 persons were prosecuted. Out of them 4 persons have been acquitted by the court-below and the accused appellants have been convicted as referred above.
(3.) Learned counsel for the appellants has assailed the judgment of the court-below and submitted that it is not practicable to identify the accused within short space of time particularly, in the darkness of dark night. He has invited my attention to Ex. P 3, and submitted that Mst. Atri, had a better opportunity to see the accused but she never identified any one. He further submits that Ramswaroop, has identified the appellant as well as the wrong person Bhagwana. He submits that by chance he has placed the hands on appellant and the identification of a wrong person namely Bhagwana, gives support to his case that Ramswaroop, might have wrongly identified the person. He further states that even during the course of identification parade the accused told to learned Magistrate, that they were shown at the police station. He further submits that Sampat, P. W. 3, has also identify Brij Mohan, Ram Singh and Manna Ram. Manna Ram, is not on accused in this case and he was under trial. Brij Mohan, has been acquitted and his identification has not been accepted by the court-below. Thus, out of the 3 persons 2 persons were identified by Sampat P. W. 3, the identification of two persons have been rejected by the court-below and naturally the identification of Sampat P.W 3, cannot be said to be a good identification.;