NIWAS Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard the learned counsel for the appellant and the learned A. G. A. who agrees 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 continues to be behind the bars.

(3.) 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/ 23/04/1974 at about 11 or 11.30 P.M. along with seven or eight companions. A few of his companions were tried and acquitted earlier in different sessions trial. He, however, was arrested by police in the night intervening 16/ 17/06/1974 at about 1 a.m. and the test identification proceedings were got conducted by the investigating 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 contended 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 ACC 507 : AIR 1987 SC 1222 : 1987 Cri LJ 991, Subash and Shiv Shanker v. State of U. 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 identification 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 to identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features.