Malik Sharief-Ud-Din,j.

( 1 ) THE learned Additional Sessions Judge by hisorder dated 10/01/1986 found the appellant along with one Sita Ramand Arjun guilty under Sections 392/394 of the Indian Penal Code and afterconvicting them of the offences sentenced each one of them with rigorousimprisonment for five years and to the payment of fine of Rs. 500. 00. In defaultof payment of which they were to undergo further rigorous imprisonment forthree months. All the three convicts have filed separate appeals. Criminalappeal No. 20 of 1986 filed by Arjun was disposed of on 31/03/1986.

( 2 ) THE prosecution case in brief is that on 20/05/1982, the appellantalong with his co-accused Sita Ram and Arjun committed robbery by causinghurt voluntarily and in the process they are said to have caused injuries topw-6, one Chhotey Lal.

( 3 ) THEY are further alleged to have deprived the complainant of his wristwatch, Rs. 12. 00 in cash and the identity card which the complainant was holdingas a Chowkidar. The matter was reported to the police patrol party withinminutes of the incident and all the three accused including the appellant wereallegedly apprehended on being identified by PW-6 Chhotey Lal. After theirarrest search of Sita Ram has resulted in siezure of the identity card of the complaint, and Rs. 12. 00 in cash. It is alleged that a wrist watch was also recoveredfrom the appellant which belongs to the complainant. On the disclosure statement made by Arjun, one razor was recovered.

( 4 ) THERE is no evidence on the record to connect the razor with the injurysustained by the complainant. The evidence tendered by PW-6, Chhotey Lalclearly indicates that it was dark hour of the night when the incident took placeand he did not know any one of the accused before hand. He has failed tonotice the nature of the weapon, that was used to inflict injury. There has beenno test identification parade. It is, therefore, absolutely doubtful as to whetherthe complainant has rightly identified the accused as those who voluntarilycaused hurt to him at the time of commission of the offence. The least that canbe said is that in the absence of test identification parade it is not proper torely on this type of testimony. Prosecution witnesses -PW-6, Chhotey Lal,pw-7 Ramesh Chander, PW-8, Mahinder Singh Sub-Inspector have all statedthat the wrist watch was recovered from the appellant while identity card andthe cash were recovered from Sita Ram. PW-5 Bala Dhar however is confusedin this regard as he has deposed firstly, that wrist watch was not recovered fromthe Sharwan and only identity card was recovered from him about which healso says it was recovered from Sita Ram. Regarding wrist watch he says thatit was recovered from Arjun. In persuance of the testimony of other threewitnesses, it is obvious that he is confused. Unfortunately even during theserecoveries no public witness was associated even though as stated by PW-9some people were passing by.

( 5 ) AS stated earlier, it is difficult to say with certainty that the injuriessustained by PW-6 Chhotey Lal have been caused by the razor recovered at theinstance of Arjun. In the absence of test of identification parade the prosecution has failed to establish the identity of the culprits particularly in view of thedarkness and the fact that complainant did not knew these people. The injurycould be caused by the siezed razor is not conclusive evidence. It is only anopinion.

( 6 ) AFTER giving my careful consideration to the facts of the case, I, howeverfind that there is nothing in the testimony of PW-6, Chhotey Lal to render himuntruthful. It is a different matter that he has tried to exaggrate his evidenceby identifying the persons whom it was difficult to identify in view of the peculiar features of this case. But in so far the recovery is concerned, there is noreason to disbelieve that it was not made from the appellant and his accomplicesita Ram. In fact all the evidence establishes beyond any doubt that therec

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