SHABIR GAFFOOR SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Mr. Sejpal, learned counsel for the appellant.

(2.) THIS appeal is preferred against the order dated 15.2.95, passed by the learned Addl. Sessions Judge, Gr. Bombay in Sessions Case No.470 of 1982, convicting the appellant for the offence punishable under section 392 read with section 34 of I. P. C. and sentencing him to suffer R. I. for a term extending 3 years.

(3.) AFTER going through the record and proceedings of this case, admittedly, there is a delay in holding the identification parade and no reason for that has been explained by the prosecution. The unreasonable delay of 50 days in holding the identification parade of the accused cannot be condoned under any circumstances. It is a fact that before he was arrested in connection with this offence, the appellant was very much in the judicial custody in connection with the other case. Therefore, that aspect of the matter cannot be ignored while considering the identification parade which was conducted at a very late stage. Further, it is clear from the evidence of P. W. 2 Mahesh Mulay himself that he was not authorised to hold the identification parade at the relevant time. That also renders the identification parade meaningless. So far as identification of Muddemal articles is concerned, the panch witness P. W. 4 has not supported the discovery of Muddemal articles and he declared hostile. Having gone through his evidence, P. W. 4 is a thoroughly useless prosecution witness. Therefore, his evidence is useless in this case. Neither it help the accused nor the prosecution. However, on first two counts, the judgment and order of conviction deserves to be quashed and set aside, and the appeal deserves to be allowed.