RAM CHARAN Vs. STATE

JUDGEMENT

(1.) THE appellant has been convicted under section 395 of the Penal Code and sentenced to 7 years rigorous imprisonment and a fine of Rs. 50/ -

(2.) A dacoity was committed in village Bamrauli in the night between the 1st and 2nd May 1958 in the houses of Mazbut Singh, Devi Prasad, Babulal, Bhabuti, Jabar Singh, Jimipal and Lakkhu. The appellant and four others were prosecuted for dacoity and two others under section 412 I.P.C.

(3.) THE appellant was arrested on May 21, 1958 but the test identification parade was held on June 22, 1958. There Was thus a long delay of one month, Vedram Singh P.W. 51, the Investigating Officer stated that he requested the Sub -Divisional Magistrate 'through the Prosecuting Inspector' on June 5, 1958 but the Magistrate fixed the 17th June and on that date too he did not hold the parade, but held in on the 22nd. This witness further stated in cross -examination that on the 9th June be personally submitted a report to the Sub -Divisional Magistrate I do not find any report of the 5th June or the 9th June on the record, nor has the learned Government Advocate been able to point out to me those reports. Shri Ramchandra Dubey, Sub -Divisional Magistrate P. W. 54, who verified the memorandum of the test identification parade stated that he did receive a report from the Station House Officer through the District Magistrate on the 9th June and he fixed the 16th and 17th June for the purpose but before that date he had not received any request from the police. The witness was not confronted with any other report. The Magistrate must, therefore, be believed. The prosecution has not explained the delay from 21st May to 9th June. Then it seems to me that only six persons were mixed with the five to be identified. No witness gave any description of the persons that he was going to identify. The appellant was identified by Khayyali and Babu. The other four persons could not identify him. For all these reasons the identification is doubtful and the benefit of doubt must go to the appellant.