( 1 ) THIS is an appeal against the judgment of the learned Additional Sessions Judge, dated 27-1-1981 and order dated 30-1-1981 by Which he convicted the appellant under Section 397 Indian Penal Code and sentenced him to imprisonment for seven years. I have heard the learned emicus curiae and the learned Additional Public Prosecutor and seen the record.

( 2 ). An FIR 348/79 dated 8-9-1979 was lodged by one Rajinder Kumar in the Chanakya Puri Police Station that during the night intervening 7th and 8th September, 1979 his three wheeler scooter DHR 9272 was hired by two persons from Chandni Chowk for Govindpuri at about 12-30 a. m. At Govindpuri they asked him to take them to Officers Flats on Sardar Patel Marg, where the two occupants at the point of knife snatched from him a wrist watch and Rs. 36. 00 and ran away with his scooter. After investigation the police found that the accused were Balak Ram and Sunil Kumar. What was the result of that case is not known. But a mention of these facts is necessary as these are relevant because the identification memos relating to the accused and the case property filed in this case have shown some sort of mixing up.

( 3 ). FIR 374/79 was registered at the Chanakya Puri Police Station on 28-9-1979 that on the night between 27th and 28th September, 1979 at 2. 15 a. m. Ganga Ram (PW 1) was driving his scooter DHR 8204. He was hired by two persons from Railway Station, Delhi Main, for Chanakya Puri, but when they reached near Chanakya Cinema, they asked him to stop for some tinre and then directed the witness to proceed towards Jesus and Marry College. There the younger companion Sunil Kumar caught hold of the scooter driver from the back by his collar and the appellant placed a knife at his abdomen and made him get down the scooter. Accused Balak Ram removed wrist watch and the purse containing Rs. 335. 00. Thereafter they ran away with the scooter. A few hours after they were intercepted by the police near the crossing of Mori Gate and Boulevard Road in Civil Lines area. One of them Sunil Kumar was driving the scooter and the appellant was sitting inside the scooter. Recovery Memo Ex. PG shows that accused Balak Ram. was found to be in possession of a spring actuated knife and two wrist watches one Roamer ladies and one Reicho. A case under the Arms Act was registered against him, vide FIR. 926/7) Police Station Civil Lines. The recovery memo Ex. PG further shows that cash of Rs. 338. 55 and a wrist watch and the scooter was taken into possession from Sunil Kumar.

( 4 ). On receiving information, Chanakya Puri Police Officer went to Civil Lines and arrested the two accused persons, produced them in the court of the Metropolitan Magistrate and made an appllcation for test identification parade on 28-9-1979 itself. Sunil Kumar declined to take part in the test identiiication parade and is being tried separately perhaps in the Children s Court. Balak Ram consented to be subjected to test identification and on 16-10-1979 Shri S. K. Tandon, Metropolitan Magistrate went to the Jail for holding a test identification parade. The memo Ex. PC/2 shows that in FIR 374/79, two witnesses Rajinder Kumar and Ganga Ram were asked to identify the accused, though Rajinder Kumar was not at all concerned in FIR 374/79. However, he could not identify the accused. Ganga Ram witness identified the accused correctly. On the same day, he repeated the parade in FIR 348/ 79. Again the two witnesses, Rajinder Kumar and Ganga Ram were called, out of whom Rajinder Kumar did not identify while Ganga Ram correctly identif ied him, though he was not concerned in this FIR. The memo of this parade has not been exhibited though the Magistrate Shri S. K. Tandon (Public Witness 6) has deposed about it. This test identification has exhibited veritable confusion on the part of the learned Magistrate and the Police. I will, therefore, attach no importance to the test identification.

( 5 ). Some confusion prevailed