The unexplained delay in the test identification parade rendered the prosecution's evidence unreliable, leading to the acquittal of the accused for insufficient proof beyond a reasonable doubt.

JUDGMENT :

RAMESH CHAND, J.()

Today, on repeated calls, no one appears on behalf of the appellant, as the case is of the year 2010 (15 years old) and no one is present on behalf of the appellant. Hence, let an Amicus-Curiae be appointed in this case for disposal of the case.

2. Accordingly, Ms. Priya, learned Advocate is hereby appointed as Amicus-Curiae to assist this Court in the present matter.

3. Heard Ms. Priya, learned Amicus-Curiae for the appellant and Mr. M. Dayal, learned APP for the State.

4. The present appeal has been filed under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C’) challenging the Judgment of conviction dated 28.02.2013 and order of sentence dated 04.03.2013 passed in Sessions Trial No. 142 of 2011 in connection with Sandesh P.S. Case No. 117 of 2010 passed by learned Adhoc Additional Sessions Judge-I, Bhojpur at Ara, whereby and where-under the appellant has been convicted for the offence under Section 392 of INDIAN PENAL CODE and sentenced to undergo rigorous imprisonment for a period of five years under Section 392 of INDIAN PENAL CODE with fine of Rs. 10,000 and on failure of payment, the appellant will further be sentenced to simple imprisonment for three months.

5. The brief facts leading to the filing of the present appeal on the basis of the written statement of the informant to O/C of Sandesh PS Station, Bhojpur on 12.12.2010 are that on the midnight of 11.12.2010, when after taking meal the informant and his parents were sleeping in the house in their separate room, they heard the noise of his cow jumping. He was awaken by the noise and he further heard the sound of opening of door of his father’s room and when he came out of the room along with his mother to see the caw, he saw 2-3 persons holding his father on pistol point and the accused persons put pistol point on them also and brought them in his room and ordered them to sit on the bed and threatened to take their lives. In the mean time, one accused came there and ordered not to raise alarm lest he would shoot them. Two accused persons were standing with pistol and rest accused persons started breaking the lock of the box by Khanti and took out ornaments, clothes, and utensils of tilak, bucket of brass, Barguna, two bowls of phool, glass, plate of bowl of silver and one fish and Rs. 5000/- (Five thousand) in cash and further snatched three Jiutia of gold, nose pin, earrings on pair, payal of silver from his mother. After that, all four accused persons threatened to shoot them if they raised alarm and they came out of the house and hearing the sound of vehicle, the informant and his parents raised alarm upon which his neighbor Satrughan Singh came there along with other villagers and opened the door. He and his parents told him about the occurrence. One of the accused was of whitish color and clean saved and another accused was of blackish color. The accused persons committed the offence of dacoity after jumping over the wall of courtyard. The articles which were looted belong to his Bhabhi and could be disclosed by his Bhabhi. All the accused persons were wearing Shirt-Pant. During occurrence, the accused persons took out the battery of the informant’s mobile phone.

6. Further, on the basis of the said written statement of the informant, Sandesh P.S. Case No. 117, dated 12.12.2010 under Section 392 INDIAN PENAL CODE was registered and after investigation charge-sheet of the offence under Section 395 INDIAN PENAL CODE against the present appellant had been submitted and accordingly, cognizance had been taken by the learned Chief Judicial Magistrate, Bhojpur at Ara and he had conducted TIP in jail premises on 24.12.2010.

7. The prosecution examined altogether 8 witnesses to substantiate the charges levelled against the appellants, who are namely PW-1 Shatrughan Singh, PW-2 Jai Kumar Singh, PW-3 Dinesh Singh, PW-4 Saroj Devi, PW-5 Manish Kumar Singh, PW-6 Jitendra Singh, PW-7 Ram Vinay Singh and PW-8 Ana