important Point
Some delay in conducting TI parade, however, in circumstances beyond control cannot be said to be fatal to the prosecution.

judgment

Dr. Arijit Pasayat, J. —

1.Leave granted.

2.Challenge in this appeal is to the order passed by a learned Single Judge of the Rajasthan High Court, Jaipur Bench. Challenge in the appeal before the High Court was to the judgment and order dated 10.4.2002 passed by learned Additional Sessions Judge (Fast Track) Class II, Jaipur. By the said judgment, the appellant was convicted for offence punishable under Section 395 of the Indian Penal Code, 1860 (in short ‘IPC’). He was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- with default stipulation.

3.Background facts in a nutshell are as follows :

In the intervening night of 8-9th May, 1994 when Vishwas (PW-3) and his wife Renu Jain (PW-1) were sleeping in their house situated in Mauji Colony, Malviya Nagar, Jaipur, five persons entered the house and tied their servant Chaturbhuj who was sleeping in the basement of the house. Thereafter, the accused also tied the mouth, hands and legs of Vishwas Jain (PW-3) and his wife Renu (PW-1) and then bolted them inside the bathroom and having threatened them at the point of pistal and knife, the accused looted the gold and silver ornaments, coins and cash. The miscreants stayed in their house for about an hour. Complainant Vishwas managed to come out of the bathroom through a window and then telephonically informed the police personnel of Police Station, Malviya Nagar, Jaipur. On receiving the information, the police party reached the house of complainant, where complainant submitted a written report, whereupon a case for offence under Section 395 IPC was registered.

At the very outset it may be stated that case was registered against five accused. The investigating agency arrested three accused, namely, Mohd. Babul, Mohd. Jalal and Mohd. Ansari and after completion of investigation submitted charge sheet against them for offence under Section 395 IPC. At the conclusion of trial, the leaned trial Judge vide its judgment dated 31.3.1997 held the accused appellant guilty and accordingly convicted and sentenced them. These three accused challenged their conviction by filing appeals before the High Court. Vide judgment dated 13.4.1998 the High Court dismissed the appeals of Mohd. Jalal and Mohd. Babul and maintained their conviction under Section 395 IPC and partly allowed the appeal of accused Ansari by altering his conviction from Section 395 IPC to Section 411 IPC. Investigation as against the appellant and co-accused Saidulla was kept pending under Section 173(8) of the Code of Criminal Procedure, 1973 (in short the ‘Code’). Appellant Mohd. Kalam was arrested on 27.3.1998. Co-accused Saidulla was also arrested but he absconded during trial and is still absconding.

After arrest, Test Identification Parade was conducted and after completion of investigation, police submitted charge sheet against the appellant.

The basic challenge before the High Court was to the possibility of identification. With reference to the statement of Renu Jain (PW-1) and Vishwas Jain (PW-3) it was contended that there was possibility of the appellant having been shown to the complainant and his wife. It was stated that the Test Identification Parade (in short ‘TI Parade’) was done after a period of over 7 days. High Court did not accept the plea. It held that the trial Court had analysed this aspect. The High Court also considered the evidence of PWs 1 and 3 and came to hold that it was crystal clear that PW-3 had ample opportunity to identify the appellant. It was also noted that the said witness was believed in respect of the identification of three other accused persons who had earlier faced trial and had been convicted for offence punishable under Section 395 IPC and on appeal their conviction had been upheld by the High Court. The appeal was accordingly dismissed.

4.Learned counsel for the appellant submitted that only on the basis of identification by PW-3 the conviction should not have been recorded. It was pointed out