ATIQ Vs. STATE OF U P

JUDGEMENT

(1.) THE facts giving rise to this appeal are that on 28.10.1974 at about 12.45 p.m. Parmanand Gupta and his wife, Smt. Shashi Gupta, were going on their scooter from Vijai Nagar to their village. When they reached the crossing of Cooperganj, Parmanad Gupta stopped the scooter and parked the same by the Side of Urinal and went to purchase grapes etc. Smt. Shashi Gupta remained standing near the scooter. After a little while two persons came there and one of them snatched golden chain from the neck of Smt. Shashi Gupta, whereupon she raised alarm and caught the hand of that person but she was assaulted and was given knife injury. On alarm raised by Smt. Shashi Gupta, her husband, who was purchasing grapes saw this occurrence and rushed to the spot and tried to catch hold of the robbers. In the meantime, Hariom Gupta, Gyan Prakash Gupta and some other persons also collected there, but the robbers succeeded in running away with the robbed property. Parmanand Gupta was also stabbed by the robbers. Those persons who were present and who had come there told on the spot that the persons who had robbed Smt. Shashi Gupta of golden chain and caused injuries to her were Atiq and Shafiq. Atiq was having a defective hand. On the basis of written report a case was registered.

(2.) DESPITE the best efforts made by the police these two accused persons could not be arrested on that day. It was only on 7.11.1974 that Shafiq surrendered in the Court of Chief Metropolitan Magistrate, Kanpur in some other case and he was taken into custody and sent to jail 'Baparda'. The other accused, Atiq, was arrested later on 15.6.1975 and he was also kept in jail 'Baparda'. It was on 6.8.1975 that the test identification parade was arranged at the instance of the prosecution but that identification Parade was postponed because the witnesses did not reach the Jail to take parti in identification parade. That identification parade was arranged for second time, Le., on 1.10.1975. In that identification parade only Sri Parmanand Gupta took part and he correctly identified both the accused persons as the accused who had robbed his wife, Smt. Shashi Gupta on the point of knife and caused injuries to her while robbing her. In the statement before the court he also identified the accused persons as those who had committed robbery while armed with deadly weapons and caused Injuries by knife to his wife. His wife, Smt. Shashi Gupta also identified this accused in the Court who had caused injuries to her and robbed her.

(3.) THE first submission made by the learned counsel for the appellants in that admittedly, these accused persons were not known to the witnesses, i.e. Smt. Shashi Gupta and her husband, Parmanand Gupta and, therefore, it was Incumbent on the prosecution to hold identification parade for identification of these accused persons at the earliest. According to him these accused persons were not arrested on the spot and it was on 7.11.1974 that Shafiq, appellant, surrendered in court and was taken into custody whereas other accused, Atiq was arrested on 15.6.1975. According to the learned counsel identification parade was held on 1.10.1975, Le. after a long delay. According to the learned counsel for the appellants delay in holding identification parade is fatal to the case.