A confessional statement is admissible in evidence only if it relates to the crime alleged to have been committed by the accused. An identification of an accused person in a test identification parade is not reliable if the identifier had not given any particulars or description of the accused in his earlier statements and if there was a long gap between the commission of the crime and the identification parade.

JUDGEMENT

1. Rajkishore Sahu, the appellant in Jail Criminal Appeal No.75 of 1980 and Jogindra Pradhan, the appellant in Jail Criminal Appeal No.79 of 1982, have preferred these appeals against their conviction under S.394 of the Penal Code and sentence of rigorous imprisonment for eight years imposed on each. Originally there were four accused persons charged under S.395 of the Penal Code. On a consideration of the materials, the learned Assistant Sessions Judge found that charge under S.395 of the Penal Code had not been brought home as the number of culprits was less than five. He also found that there was no evidence against the accused persons other than the appellants. So, while acquitting the other accused persons, he convicted the appellants as aforesaid.

2. The prosecution alleged that around 2 to 3 a.m. on 23-10-1974 some-body knocked on the front door of the house of Chakradhar Sahu, the informant, with a heavy instrument. When the door was opened, two persons entered inside. One of them gave a blow to the informant with the instrument he was holding. Appellant Jogindra Pradhan kept guard on him and appellant Rajkishore entered inside the room. They were wearing half pants and half shirts and had covered their heads. Appellant Rajkishore removed a chain from the neck of the daughter of the informant. Though they ransacked the house, they could lay their hands on no other valuables and left. The next morning the Investigating Officer came to the village of the informant and the F.I.R. was lodged with him.

3. Nothing was recovered in the course of investigation. In a test identification parade, the informant identified the appellants.

4. Prosecution examined four witnesses. P.W.1 was the informant, P.W.2 was the Investigating Officer, P.W.3 was the Magistrate who recorded the confessional statement of Narendra, a co-accused, and P.W.4 was the Magistrate who recorded the confessional statement of appellant Jogindra. Besides, the prosecution relied upon the confessional statement made by Jogindra, Ext.5.

5. The plea of the appellants was one of denial of the occurrence.

6. The learned Assistant Sessions Judge relying upon the identification made by P.W.1 in the court corroborated by the identification made by him in the T.I. parade and the evidence of P.W.1, convicted appellant Rajkishore Sahu. Relying on the aforesaid evidence and the confessional statement made by Jogindra, the learned Assistant Sessions Judge also convicted appellant Jogindra and sentenced each of them as aforesaid.

7. Mr. Jairaj Behera, the learned counsel for the appellants, assailed the judgment on the following grounds :-

(a) The learned trial Judge fell into an error by relying upon the confessional statement, which apart from serious infirmities vitiating the proceeding, did not relate to the alleged crime which was the subject-matter of the indictment.

(b) Having regard to paucity of materials relating to identification of the accused persons in the F.I.R. and in the evidence in court, the identification in the T.I. parade was valueless: and

(c) Adverse inference was available to be drawn from non-examination of other witness/witnesses by the prosecution alleged to be present at the time of occurrence. He also submitted that non-examination of any villager before whom P.W.1 narrated the incident, entitled the defence to view the evidence with suspicion.

8. The first submission of the learned counsel is incontrovertible. The statement, Ext.5, contains the narration of incidents other than the alleged incident in the house of P.W.1 in village Kamaladihi which is the subject matter of the charge. The confessional statement, therefore, has no relevance and is not a confessional statement at all in respect of the crime alleged to have been committed by the appellant Jogindra. Reliance thereon by the learned Assistant Sessions Judge is therefore, misconceived.

9. The second contention of the learned counsel is equally formidable. P.W.1 admits that there was no