Judgment

CHANDRACHUD, J. :- The appellant Bharat Singh along with two others, was convicted by the learned II Temp. Addl. Sessions Judge, Bijnor, under Section 395 of the Indian Penal Code and was sentenced to rigorous imprisonment for 8 years. The order of conviction was confirmed in appeal by the High Court of Allahabad, but it reduced the sentence to 6 years. This appeal by special leave is directed against the judgment of the High Court.

2. A U.P. Government Roadways Bus was proceeding from Delhi to Bijnor on 15th April, 1964. After the bus left Dharnaura, a passenger seated in the upper class pointed a pistol at the driver Bhajan Lal and asked him to stop the bus. Another passenger in the upper class was carrying a hockey stick while three others in the lower class were armed with pistols. The five miscreants then robbed the passengers and ran away. The bus resumed its journey and on reaching Chandpur, the conductor, Ishar Ali, lodged the first information report at the police station.

3. The appellant was arrested on 3rd May, 1964 . At the trial, he denied having participated in the docoity and alleged that he was implicated falsely. He contended particularly, that he was shown to the several witnesses before the identification parade was held.

4. Many witnesses were examined by the prosecution but, for the purposes of this appeal, the evidence of two witnesses only is primarily important. Those witnesses are Rahman Shah and Krishna Kumar Mittal, who claim to have traveled by the particular bus. According to Rahman Shah, the appellant was sitting behind the driver s seat and was carrying a weapon like a hockey stick. The appellant and his companions are alleged to have robbed the passengers, Rahman Shah himself having been robbed of a sum of Rs. 30/- a cap and a glass. Krishna Kumar says that the five miscreants first robbed the muslims, then the Hindus and that the incident occupied about half an hour. Both the witnesses identified the appellant in the identification parade held on 7th August, 1964.

5. Learned counsel appearing on behalf of the appellant raised many contentions of fact which we do not proposes to entertain. His main attack is, however, directed against the manner in which the identification parade was held and we will deal with that point briefly. The contention is that the rules framed by the High Court of Allahabad in regard to identification parades were not observed by the Magistrate who held the parade. Counsel says that a large number of chits were placed on the face of the appellant in order to cover the marks of identification and such extensive covering of the face would render identification impossible. We are unable to accept this contention because Dr. R. S. Asthana, a Magistrate of the First Class who held the identification parade was not cross-examined at all in regard to the manner in which the parade was held or in regard to the number of chits which were placed on the face of the appellant. The evidence of the Magistrate not having been challenged in the Sessions Court, we cannot permit counsel to raise the contention that the parade was held in an irregular manner, contrary to the Rules framed by the Allahabad High Court. The decision of this court in Budhsen v. State of U.P. 1971 (1) SCR 564 in which it was observed that magistrates who are in charge of identification parades must take due precautions in order to eliminate suspicion of unfairness and to reduce the chances of testimonial error has, for the same reason, no application.

6. In Hasib v. The State of Bihar (AIR 1972 SC 283) it was observed by this Court that identification parades belong to the investigation stage and therefore it is desirable to hold them at the earliest opportunity. An early opportunity to identify tends to minimise the chances of the memory of the identifying witnesses fading away due to long lapse of time. Relying on this decision, counsel for the appellant contends that no support can be derived from what t