Bachcha Ram vs State

S. K. Kaul, J.—I do not think it necessary to issue notice in this case because when I put this question to the learned Assistant Government Advocate he frankly agreed with me that in the present case if ordinary procedure is gone into an irreparable injury would be done to the appellant inasmuch as by a reading of the judgment itself it comes out that conviction of this appellant based on identification evidence cannot be sustained even for a moment. In these circumstances, I thought fit to decide this case without calling for the record because I feel that if the usual procedure is adopted it would mean asking the appellant to furnish bail and in case he is not in a position to furnish bail he will have to languish in jail for atleast some time, which may be years, before the appeal is listed when he is bound to be acquitted. That being so, I thought it fit in the interests of justice to give a goby to this practice and straightaway pronounce judgment with the help of the trial courts judgment before me.

It appears that this appellant was asked to stand his trial in connection with a robbery said to have been committed in a running train in the night between 10/11671, between Maskinwa and Lakhpat Nagar on the North Eastern Railway, The victims of the robbery were Rajju and Smt. Kalawati. The allegation in that four robbers started plundering the passengers. Rajju was robbed of a tenrupee note and Smt. Kalawati was robbed of a Hansuli, earring and a nosepin. The robbers were unknown. A report of this incident was lodged at P. S. G. R. P. Gonda on 1161971 at 2.20 a.m. by Rajju P. W. 12. The investigation was taken in hand. The Investigating Officer came to know of the implication of the present appellant as well as one Faruq. The present appellant was arrested on 2471V71 sometime at about 7 or 8 p. m. by constable Ram Prasad. He was brought Baparda to Police Station G. R. P. and next morning he was despatched to the jail in that very condition. The testidentification of the present appellant was done on 11871 and in these indentification proceedings he was correctly identified by Rajju and Smt. Kalawati. Thereafter, the present appellant, along with the coaccused Faruq who was acquitted by the Additional Sessions Judge, Gonda, were asked to stand their trial under Section 394, I. P. C. read with Section 397, I.P.C.

The defence of the appellant was that he had nothing to do with this occurrence and that he was shown to the witnesses before his test identification.

The learned Additional Sessions Judge believed toe factum of robbery and on the basis of the identification evidence of Rajju and Smt. Kalawati found the charge established as against the present appellant.

It is, in these circumstances, that the present appeal was filed today in my Court.

It appears from a perusal of the judgment of the learned Additional Sessions Judge that he believed the identification evidence of Smt. Kalawati although in the body of judgment he himself remarked that in the earlier parade Smt. Kalawati had committed a mistake. The result was that while Rajju had picked up two suspects correctly and had not committed any mistake, Smt. Kalawati had picked up two suspects correctly but had committed one mistake. There can, therefore, be no doubt that identification evidence of Smt. Kalawati is bad identification and yet for reasons best known to ;he learned Additional Sessions Judge he has accepted her evidence as good identification evidence. That being so, we are left within only one identification and as such, specially when nothing has been recovered from the possession of the present appellant, his conviction under Section 394/397, I. P. C. cannot be maintained.

As a result, I would allow the appeal and set aside the sentence and conviction awarded to the appellant under Sections 394/397, I.P.C.

The appellant is in jail. He shall be set at liberty forthwith unless wanted in some other connection.

A copy of this order will be sent to the Superintendent of Jail concerned and a copy of the judgment will also be given to the learned counsel for the appellant on payment of usual charges as prayed by him.