JUDGMENT Shivdayal, J. 1. The appellant has been convicted under section 395 of the Penal Code and sentenced to 7 years rigorous imprisonment and a fine of Rs. 50/- 2. A dacoity was committed in village Bamrauli in the night between the 1st and 2nd May 1958 in the houses of Mazbut Singh, Devi Prasad, Babulal, Bhabuti, Jabar Singh, Jimipal and Lakkhu. The appellant and four others were prosecuted for dacoity and two others under section 412 I.P.C. 3. The conviction of the appellant is based on two pieces of evidence: 1. Identification, and 2. Recovery of property on the information received from the appellant. 4. The appellant was arrested on May 21, 1958 but the test identification parade was held on June 22, 1958. There Was thus a long delay of one month, Vedram Singh P.W. 51, the Investigating Officer stated that he requested the Sub-Divisional Magistrate 'through the Prosecuting Inspector' on June 5, 1958 but the Magistrate fixed the 17th June and on that date too he did not hold the parade, but held in on the 22nd. This witness further stated in cross-examination that on the 9th June be personally submitted a report to the Sub-Divisional Magistrate I do not find any report of the 5th June or the 9th June on the record, nor has the learned Government Advocate been able to point out to me those reports. Shri Ramchandra Dubey, Sub-Divisional Magistrate P. W. 54, who verified the memorandum of the test identification parade stated that he did receive a report from the Station House Officer through the District Magistrate on the 9th June and he fixed the 16th and 17th June for the purpose but before that date he had not received any request from the police. The witness was not confronted with any other report. The Magistrate must, therefore, be believed. The prosecution has not explained the delay from 21st May to 9th June. Then it seems to me that only six persons were mixed with the five to be identified. No witness gave any description of the persons that he was going to identify. The appellant was identified by Khayyali and Babu. The other four persons could not identify him. For all these reasons the identification is doubtful and the benefit of doubt must go to the appellant. 5. No witness gave any description of the persons that he was going to identify. The appellant was identified by Khayyali and Babu. The other four persons could not identify him. For all these reasons the identification is doubtful and the benefit of doubt must go to the appellant. 5. On appellants' information bangles Arts.-72 and 67 were recovered from the shop of Balkrishna P. W. 36 at Gwalior to whom the appellant had sold them. The information Memo (Ex. P. 49) the seizure memo (Ex. P. 36) and the entry in the books of account of Balkrishna (Ex. P. 35) have been proved by the statements of Balkrishna P, W. 36, Phundilal P. W. 46, Motilal P. W. 33 and Vedramsingh P. W. 51. Bangle Art. 72 was correctly identified by Rajabeti P. W. 12 to be [hers and Dhanwanti P, W. 52 identified the Bangle Art. 67. The trial Judge has discussed the details of the evidence and it is not necessary to re-travel the ground covered by him. Likewise, it is unnecessary to go into further details as to the articles seized from the house. 6. On the above findings it is difficult to maintain the conviction under section 395 of the Penal Code. However, in view of the fact that the stolen properties were recovered from the possession of the accused and they had been recently stolen, the appellant must be convicted under Section 411 of the Penal Code. 7. This appeal is partly allowed. The conviction of the appellant is altered to one under S. 411 of the Penal Code and the sentence is reduced to three years R.I. 8. Before I leave this case I must observe that, at any rate, the investigating Officer owed an explanation to the court why from the 21st May to the 9th June he did not approach a Magistrate for holding a test identification parade. His complete silence about it may have been convenient to him but be failed in his duty to the court, namely, to place all such facts before it as would assist it in arriving at the correct conclusion. 9. Whenever a Magistrate Is approached for conducting a test identification parade he must hold a parade as early as possible. Unnecessary delay and fixing long dates are undesirable. 9. Whenever a Magistrate Is approached for conducting a test identification parade he must hold a parade as early as possible. Unnecessary delay and fixing long dates are undesirable. When he is examined as a witness the prosecution or, in any event, the trial Judge should ask the Magistrate why he fixed a long date and record his explanation. Appeal allowed