KEDARI Vs. STATE OF U P

JUDGEMENT

(1.) The accused Kedari and Chhatrapal have preferred this appeal against the judgment and order dated 25th April 1978 passed by Vth Additional Sessions Judge Moradabad convicting them under section 395 Indian Penal Code and sentencing each one of them to undergo R I. for a period of five years. The only evidence to implicate the accused in this crime is that of identification. It so appears that the accused Kedari was arrested on 14th of June 1976 and was put up for identification in the District Jail Moradabad on 21st of June and has been correctly identified by Bud hi (P. W. 2) Tara Chand (P.W. 4) and Man Singh (P.W.7). The accused Chhatrapal was arrested on 3rd of July 1976 and put up for identification in the District Tail of Moradabad on 20th of July 1976. He has been correctly idcntifi6d by Bhudeo (P.W. 1) Budbi (P. W. 4) and Man Singh (P. W. 7). The Executive Magistrates who conducted the test identification parades have not been examined by the court below and the genuineness of the identification memo has not been admitted by the defence, with the result the identification memos on the record not having been proved, cannot be read in evidence. The learned Sessions Judge has grievously erred in placing reliance on these test identification memos. No reliance can be placed on these memos for convicting the accused appellants unless and until either the Magistrate is produced to prove them or the defence admits their genuineness. As I have mentioned above neither the Magistrate has been produced to prove these memos nor has the defence admitted their genuiness. The conviction of the appellants on the basis of these memos is bad in law and the finding of the court below on the basis of these memos that the accused have teen correctly identified by the witnesses in the test identification is bad in law and cannot be upheld.

(2.) No one has appeared for the appellants since yesterday. I have however gone through the record with care and heard learned counsel for the State.

(3.) It has been argued by the learned counsel for the State that under the prevailing circumstances Magistrates should be summoned in this court and examined to prove the identification memos. The learned counsel for the prosecution has not been able to give any reason as to why the prosecution failed to produce the Magistrates in the court below. There is nothing on the record to show that the learned Sessions Judge did not afford sufficient opportunity to the prosecution to produce the Magistrates. It is not possible to summon and examine witnesses at this stage simply to fin up the lacuna in the prosecution evidence, more so when the prosecution had ample opportunity to produce the evidence and has not been able to give any reason for not having produced the same in the court below. I, therefore, find no justification in the present case to summon the Magistrates at this stage.