JUDGMENT 1. . - These two appeals arise out of the judgment of the learned Addl. Sessions Judge No. 2, Jaipur dated February 2,1976,whereby each of the six accused-appellants were convicted under Section 395, IPC and sentenced to four years rigorus imprisonment and a fine of Rs. 200/- each, and in default of payment of fine to three months rigorous imprisonment. 2. As both these appeals arise out of the same judgment, they are being disposed of by this single judgment. 3. The facts of the case, in brief are that one Jagdish Narain lodged an FIR on 2.1.1974, alleging therein that on 15.12.1274, his son Srawan had gone to fetch his sister Gita from her in-laws place. His Hali (servant) Nanchha had also gone with a bullock-cart to Nala Padampur. From there Srawan, Gita and Nanchha started for village Tambhapiya, where the informant resides. Before starting from Nala Padampur these three persons had seen five or six persons who were putting on pants and bushirt. These persons followed the bullock-cart and after sometime they went ahead of it. Near Sambhariya river, which is at a distance of a mile and a half from village Sambhariya, these persons stopped the bullock-cart and got the ornaments of Gita by show of force. The ornaments were consisting of gold.rings weighing about a tola. On one of the rings the name of Gita was engraved while on the other the name of Vimla was engraved. They also took the pair of ear-rings of gold which weighed about 1/2 a tola. The silver `paijeb' was also taken. The informant had also mentioned in the FIR that he did not lodge a report previously as he thought that his married daughter shall have to appear in courts, but about 4-5 days before the lodging of this report one persons by name Suwaial resident of village Akodiya met him, and told him that a similar incident had also taken place with him, on 15. 12. 1974 for which he has already lodged a report. He has lodged this report on the information of Srawan who reached village Sambhariya at about 9.30 or 10.00 p.m. After investigation, the police charge-sheeted the accused for an offence under Section 395, IPC and led evidence. 12. 1974 for which he has already lodged a report. He has lodged this report on the information of Srawan who reached village Sambhariya at about 9.30 or 10.00 p.m. After investigation, the police charge-sheeted the accused for an offence under Section 395, IPC and led evidence. In support of the prosecution evidence PW/1 Sitaram, PW/2 Gita, PW/3 Srawan Kumar, PW/4 Nanchha, PW/5 Surajmal, PW/6 Jagdish Narain, PW/7 Shashi Kant and PW/8 Aswani Kumar. The accused persons pleaded not guilty and claimed to be tried, but did not lead any evidence in defence. 4. On behalf of the accused-appellants, it was strongly argued that there has been an extreme unexplained delay in lodging the report. The incident is alleged to be of 15.12.1974, while the information was lodged on 2.1.1975. It was contended that this delay is extremely fatal to the prosecution case. Reliance has been placed on Mst. Budhia v. Chholelal, 1965 RLW 410 , Sultan Singh v. the State of Rajasthan, 1969 WLB 25 , Balka Singh v. the State of Punjab, AIR 1975 1962 and Mittersen v. the State of U.P., AIR 1976 SC 1156 . 5. It was also contended that the FIR was not sent to the Magistrate concerned as required under sub-clause (1) of Section 157, Cr. P. C., 1973. Reliance was placed on. In re Gabriel, 1977 Cr.L.J. 135 and Ibrahim v. The State, 1976 RLW 56. 6. It was also contended that the identification in the instant case was entirely false. Firstly, it was a dark night and the incidents alleged to have taken place at about 8.30.P.M., and in the absence of the light the accused persons could not be identified. Moreover, there is evidence that the accused persons had muffled their faces and, as such, there was no question of identifying them. It was also contended that the accused persons were already in judicial custody in that case, the identification proceeding r for this case took place. It v,as also contended that the correct type of people with similar features were not mixed up, and as such the identification was entirely unsatisfactory. Reliance was placed on State of Punjab v. Sohan Sing & Others, 1974 U.J. (SC) 67 , Pritam Singh v. State, 1971 Cr. It v,as also contended that the correct type of people with similar features were not mixed up, and as such the identification was entirely unsatisfactory. Reliance was placed on State of Punjab v. Sohan Sing & Others, 1974 U.J. (SC) 67 , Pritam Singh v. State, 1971 Cr. L.J. 974 , Asharfi v. State, AIR 1961 All 153 , Yeshwant v. State of Maharashtra, AIR 1973 SC 337 , Valkuntam Chandrappa v. State of A. P., AIR 1960 SC 1340 and Ram Pukar Singh v. the State or Bihar, 1974 U.S. (SC) 119. 7. It was further contended on behalf of the accused appellants that the information which was given to the Investigating Officer under Section 27 of the Indian Evidence Act was practically at the same time by all the four accused persons, namely Ramswaroop, Harisingh, Ganpat and Sitia. It was also contended that a joint information report under Section 27 of the Indian Evidence Act is illegal and cannot be a basis of any inference against the accused. It was also contended that though the information under Section 27 of the Indian Evidence Act was tendered by Harisingh vide Ex. 15 at 11.35 a.m. yet the ornaments were taken out by the accused, Sitia, according to the prosecution story. Reliance was placed on Dasuram v. State, 1951 RLW 74 , D. B. Deshmukh v. State, AIR 1970 Bom 438 , and Mohd. Inayatullah v. State of Maharashtra, AIR 1976. 8. It was also contended that though Alli was known to Srawan on whose information the FIR was lodged by Jagdish Narain, yet the name of Alli does not find place in the FIR. Reliance was placed on Hindui Singh v. The State, 1952 RLW 130 and G.S. Pandit v. State of Mysore, 1974 Cr.L.J. 36. It was also contended that no recovery has been effected at the instance of Alli. 9. On behalf of Sitta it was contended that nobody has identified him, and even the prosecution witness PW/2 Gita has stated in her cross-examination that when she was taking off her ornaments Srawan, Nanchha and Sitta were standing together. It was also contended that no inference can be drawn on the basis of the alleged joint recovery. Reliance was placed on Bhurgiri v. The State, 1954 RLW 404. 10. It was also contended that no inference can be drawn on the basis of the alleged joint recovery. Reliance was placed on Bhurgiri v. The State, 1954 RLW 404. 10. It was also contended that if the basic strata of the prosecution story is found to be false in material particulars, then the entire prosecution story deserves to be thrown out. Reliance has been placed on Pritam Singh v. State of Punjab, 1977 Cr.L.J. 51. 11. On behalf of the State, it was contended that the delay in filling the FIR is not fatal, and moreover, it has been properly explained. Reliance was placed on Ram Jag v. State of U. P., AIR 1974 SC 606 and Apren Joseph v. State of Kerala, AIR 1973 SC 1 . It was also contended that there is no material flaw in the identification, and for minor contradictions the identification proceedings cannot be said to be false. Reliance was placed on Delhi Administration v. Bal Kishan, AIR 1972 SC 3 . 12. Respective contentions of the learned counsel for the accused-appellants and the learned Public Prosecutor have been considered and the record of the case carefully perused. The accused-appellants have been convicted under Section 395, IPC. The prosecution has not led any evidence to the effect that any force was used in the commission of the offence of taking the ornaments from Gita and wrist watch from Srawan. As a matter of fact, the investigating agency has not effected the recovery of the wrist watch. The learned counsel for the accused-appellants has strenuously argued that in the absence of the use of force the offence, if any, could fall within the ambit of Section 383, IPC and not under Section 395, IPC. The incident is alleged to have taken place on 15.12.1974 at about 8.30 p.m. near the river Sambhariya. The informant, Jagdish Narain, was acquainted with the facts about the alleged dacoity by Srawan on the same night at about 9.30 or 10 P. M. Jagdish Narain is Sarpanch of the village. He did not lodge any report to the police, prior to 2-1-1975. While lodging the report, the explanation given by him is that he did not lodge the report as his married daughter would have to appear before a Court of law. This explanation hardly deserves any consideration before a judicial court. He did not lodge any report to the police, prior to 2-1-1975. While lodging the report, the explanation given by him is that he did not lodge the report as his married daughter would have to appear before a Court of law. This explanation hardly deserves any consideration before a judicial court. Moreover, no satisfactory reasons are forthcoming which suggests that why this apprehension did not prevail with him on 2-1-75 when the report was lodged. According to Srawan, the name of Alli, was known to him, yet in the First Information Report Alli has not been mentioned as one of the accused persons. The manner in which the entire investigation of the case has taken place does not appear to be free from doubt. Accused Ramswaroop was identified on 18-1-1975, while he was in judicial custody with regard to some other case. He was arrested on 10-2-1975. and led information on 12-2-1975 at 11.30 a.m. vide Ex. P/14. Gita P.W/-2 has stated that as the accused had put on muffler on the face she could not identify him and that the night was dark. Similarly, Hari Singh, Ganpat and Sitta were also identified on 18-1-1975, but arrested on 10-2-1975 and led information under Section 27 of the Indian Evidence Act at 11.15 a.m. vide Ex P/50 at 12(45 p. m. vide Ex.P/16 at 11.45 p.m. vide Ex. P/13, respectively. 13. Sita Ram PW/1 is only a witness regarding the preparation of the site-plan. PW/2 Gita is the main witness of-the prosecution. She has stated that she is married, in village Niwai and that she was returning to her parent's place with her brother. She left Niwai at 4 p.m. and reached Bara at about 7.00 p.m. She has mentioned about the ornaments she was putting on at that time. Nanchha Hali, was driving the bullock-cart, while she and her brother Srawan were sitting. Five or six reached near the fiver these persons asked to stop the cart, but Nanchha Hali refused to do so, on which the accused snatched away the watch from Srawan, and she had to part with two rings and a pair of ear-rings, silver "paijeb" and cash amounting to Rs. 150/-. In cross-examination she has stated that the accused-persons had muffled their faces, and only their eyes were visible. Their facial expression was not visible and that the night was also dark. 150/-. In cross-examination she has stated that the accused-persons had muffled their faces, and only their eyes were visible. Their facial expression was not visible and that the night was also dark. When she was taking off the ornaments Srawan, Nanchha and Sitia were standing at one place. 14. PW/3 Srawan has stated that on 15-12-1974 he had gone to fetch his sister from village Niwai. Hali Nanchha brought a bullock-cart at the Bara. When he started for the villages, these people followed the bullock-cart. He stated that he can identify these persons and that they were accused persons. Two persons caught hold of-him and two caught hold of Nanchha, and one stopped the bullock-cart forcibly. On reaching home, he informed of the incident to his father Jagdish Narain. On cross-examination, he stated that his statements were recorded by the police a day after the incident, i.e. on 16-12-1974. He does not remember if he was at all examined by the police 15 or 16 days after the incident. He had stated that there were five or six persons. He does not remember whether he had stated anything regarding the details of the features of the accused persons for the purpose of their identification. He has further stated that Ganpat and Hari singh had muffled their faces, and that he could identify them after their faces were muffled. He does not remember whether he had mentioned the name of Alli to his father, and whether he had mentioned the name of Alli to the police or not. He has further stated that he did not mention the name of Alli to the police as at that time he did not remember the name of Alli. 15. PW/4 Nanchha has stated that he had reached with the bullock-cart at about 7.00 p.m. When he was coming back to the village two of the accused persons caught bold of him and taken away the ornaments and cash. The learned Additional Sessions Judge has recorded the following observations in the statement of this witness:- "This witness is a bunpkin and simpleton and does not understand the form and meanings of questions put to him. So he cannot answer properly. Hence note given.'' 16. This witness could not give any satisfactory answer whether he had given the details of the features of the accused persons for the purpose of their identification to the police. So he cannot answer properly. Hence note given.'' 16. This witness could not give any satisfactory answer whether he had given the details of the features of the accused persons for the purpose of their identification to the police. 17. PW/5 Suraj Mai is a witness pertaining to recovery. PW/6 Jagdish Narain is the father of the girl Gita. He stated that he did not lodge the report initially as he stated that he did not lodged the report initially as he was afraid that his married daughter shall have to appear in the Court. But, later on, when he learnt that a similar incident had taken place in village Akodiya also for which a report to the police had already been lodged he has come forward to lodge this report. In cross-examination he stated that he knew the accused, All. from before as he was married in his Village. 18. PW/7 Shri Shashikant Sharma was the Munsiff & Judicial Magistrate, who performed the identification parade. PW/8 is Ashvini Kumar, S. H. O. Police Station, Bassi. 19. The manner in which the information under Section 27 of the Indian Evidence Act was led before the police and the recovery effected does not inspire confidence of the Court, as the accused are alleged to be the residents of village near Nimkathana, while the recovery has been effected near the village Shivdaspura. This place is about 200 miles away from the place of residence of the accused persons. The place from where the ornaments are alleged to have been recovered is an open place, and it cannot be said by any stretch of imagination that the accused had any domain or control over this open plot of land which is 200 miles away from their village. The incident is alleged to have taken place on 15-12-1974 and the recovery is alleged to have been effected on 13-2-1975. The ornaments were not got identified. By any of the accused though approble an Identification. Neither the goldsmith who prepared these ornaments for Smt, Gita has been examined. These ornaments were never mixed up with other ornaments of similar nature, and never got identified by the prosecution witnesses. 20. Identification is a very weak type of evidence, and the manner in which the identification proceedings were conducted in this case can hardly inspire any confidence of the Court. These ornaments were never mixed up with other ornaments of similar nature, and never got identified by the prosecution witnesses. 20. Identification is a very weak type of evidence, and the manner in which the identification proceedings were conducted in this case can hardly inspire any confidence of the Court. The accused persons are already in judicial custody in some other case in which the police has given a final report holding that no charge has been found to have been proved against the accused persons. While the accused were in Judicial custody, the identification is alleged to have taken place on 12-1-1975, while they were arrested in connection with this case on 10-2-1975. The procedure so adopted by the prosecuting agency can hardly be said to be in accordance with law. 21. The learned Public Prosecutor was called upon to show whether the FIR so lodged by Jagdish Narain was sent by the investigating authorities to the Magistrate concerned under Section 157(1), Cr. P. C. or not. The learned Public Prosecutor failed to show as to when the report was sent to the Magistrate concerned. He was not in a position to state whether the report; was at all sent. It was strenuously argued on behalf of the accused that whenever inconsistencies were pointed out to the learned trial Judge he has always given the benefit of doubt to the prosecution which should have normally been in favour of the accused. It was contended that the entire judgement of the learned lower Court is based on surmises and conjectures, and not on the appreciation of evidence. It was also contended that the learned trial Judge has not evaluated the evidence of the prosecution witnesses at all, but has convicted the accused persons only on imaginary and fictitious grounds. 22. Under these circumstances, it is exceedingly difficult to hold that the prosecution has succeeded in establishing the guilt of the accused persons. The guilt has not been brought home to the accused-appellants in the instant case. 23. For the reasons stated above, both these appeals are hereby allowed. The conviction and sentence of the accused-appellants are hereby set aside. The accused-appellants, except Alli, are in judicial custody. They shall be released forthwith, if not required in any other case, 24. Alli need not surrender his bail-bonds, which shall stand cancelled. *******