SEWA RAM Vs. STATE OF U P

JUDGEMENT

(1.) A. N. Diksbita, J. Appellant, Sewa Ram, has preferred this criminal appeal against the judgment and order dated 24-3- 1979 passed by III Addl. Sessions Judge, Hamirpur in Session Trial No. 50 of 1976 convicting the appellant under Sections 392/397, I. P. C. and sentencing him to undergo 7 years' R. I.

(2.) THE facts of the case reveal that on 4-1-1975 at about 5. 30 p. m. , when Smt. Phoolrani wife of Gayadin, her husband Gauri Shanker and Hargobind son of Gauri Shanker of village Galiah, police station Rath, district Hamirpur were returning home from their field, two miscreants armed with pharsa way laid and threatened them near the culvert of the Canal that in case they raise any alarm, they would be done to death. THEy stopped Smt. Phoolrani and Hargovind and forcibly relived Smt. Phoolrani of the silver Paijana. On raising alarm by Smt. Phoolrani and Hargovind, Gauri Shanker, who was coming behind them, and Narpat Singh residents of Galiah reached the place of incident. THE miscreants were chased. THEy ran towards Kaithi Badanpura. THE cost of Paijanas was estimated around Rs. 1200/.

(3.) THE date of occurrence is 4-1-1975. THE appellant was put to identi fication parade on 28-6-1975. Thus sufficient long interval of time had elapsed between the date of occurrence when PW 1 Gauri Shanker and PW 3 Narpat had seen the appellant Sewa Ram for a while and the date of that test identification parade. No doubt PW 1 Gauri Shanker and PW 3 Narpat had correctly identified appellant Sewa Ram at the parade. It is admitted that about 6 months had elapsed. If PW 1 Gauri Shanker has seen the appellant Sewa Ram, then there appears to be no reason as to why the descriptions of his feature were not men tioned in the F. I. R. Even in his statement, he has no where disclosed the features of appellant Sewa Ram. In the absence of any such description in the F. I. R. , it would not be safe and proper to act upon the identification of appellant Sewa Ram. It is thus difficult to place any reliance on the test identi fication parade. Apparently, the visibility at that time would be too poor and it may not be possible for PW 1 Gauri Shanker to recognize the appellant Sewa Ram from such a long distance. This fact further fortifies that the F. I. R. does not contain the description of the appellant Sewa Ram. Had he recognized, as he has stated in his statement and as also identified him, it is incomprehensible as to why this fact was not stated in the F. I. R. about the description of the appellant Sewa Ram. PW 1 Gauri Shanker is a literate man. No explanation is forth-coming as to why the report was prepared by PW 2 Man Singh, when the property of his daughter-in-law was looted. It is normal conduct that PW 1 Gauri Shanker could have prepared the report in the night or immediately the next morning instead of waiting and getting it prepared through Man Singh. This seems to have been introduced only to explain the delay in lodging the F. I. R.