(1.) THIS appeal is directed against the judgment of conviction dated 26.8.2002 and order of sentence dated 27.8.2002 passed by Shri Shiv Kumar Yadav, 3rd Additional District and Sessions Judge, Dumka in Sessions Case No. 127(A)/87/254/02, by which judgment he found the Appellant guilty under Section 395 of the Indian Penal Code and sentenced him to undergo R.I. for 5 years.
(2.) IT is submitted by the learned Counsel for the Appellant that it is a case of single identification during T.I. Parade. The Appellant has already remained in custody on 4.1.87 in connection with Mh. Bazar P.S. Case No. 2/87. He was only identified by P.W.2, Kamaresh Mandal. It will appear from the evidence of P.W.2 that he had not stated to Daroga that he had identified five persons and in court during his cross -examination at para 16 he has stated that he had not seen the dacoits who have entered into his house, rather he saw them while they were going from the house and as such it cannot be said that he had identified them in T.I. Parade and what act has been done by each of the dacoits and as such the evidence of P.W.2, is not reliable. However, learned Counsel further submitted that the Appellant has remained in custody during trial for about 51/2 years from 4.3.87 to 7.9.93 and subsequently also after the judgment was pronounced on 26.8.2002 he was also in custody for about one month. In that view of the matter, since he had already remained in custody for more than 51/2 years, hence he may be released as he has already suffered for more than 51/2 years during trial.
(3.) AFTER hearing both the parties and going through the record, I find that the prosecution case was started on me basis of a Fardbeyan given by Nikhil Kumar Mandal -P.W.3 stating therein that on 26.12.86 at about 4.30 P.M. when he was at his shop then one person came there and demanded Bidi and then two persons entered into his shop with pistol and demanded his gun and money and then at the point of pistol the accused snatched his wrist watch and took him to his house. In his house they assaulted him and they also committed dacoity in his house.