JUDGMENT 1. - These two appeals are directed against the judgement of the learned Additional Sessions Judge No. 2, Alwar, dated August 22, 1975, whereby both these accused-appellant were convicted to five years rigorous imprisonment and a fine of Rs. 500/- each, in default to undergo three months rigorous imprisonment. 2. As both these appeals arise out of the same judgement, they are being disposed of by this single judgement. 3. The facts of the case, in brief, are that dacoity is alleged to have been committed in village Nawaipura, Police Station Malakhera in the shops and houses of Gir Raj Prashad and Babulal in the night intervening 30th and 31st January, 1974 at about 11.30 p.m. It is alleged that 8 or 9 persons went to the house of Gir Raj Prashad. PW/1 Smt. Shanti, who had gone to sleep, woke up on the report of gun-fire. When she came out of the room in which she was sleeping she saw 8 or 9 persons standing outside the house. She went upstairs of the room in which, she was sleeping and boltod the room from inside. Her sister-in-law Kistoori PW/10 made and alarm with a view to attract the village people. It is said that after all these 8 or 9 persons went to the room in which Smt. Shanti was, broke open the doors and entered the room. One of these person jumped at the throat of Smt. Shanti, while the other caught hold of her and compelled her to reveal where the ornaments were. On this, Smt. Shanti told them that the ornaments were lying in the suit-case. On receiving this information, these two persons opened the suit-case and took away all the ornaments that were lying there. 4. One Ram Prashad PW/5 was sleeping on a cot in the shop. One of these persons called him out side the shop and demanded "bidi". When Ram Prashad did not oblige him and did not open the doors of the shop, one of these persons entered the shop, gave a beating to Ram Prasbad and enquired from him the information where the valuable articles were placed. Five bandits remained out-side the shop. These persons remained there for about half and hour. These persons looted the property also. 5. On hearing the cries of "chor" "chor" PW/4 Tej Singh came to the house of Gir Raj Prashad. Five bandits remained out-side the shop. These persons remained there for about half and hour. These persons looted the property also. 5. On hearing the cries of "chor" "chor" PW/4 Tej Singh came to the house of Gir Raj Prashad. On the way, he came across a bandit who cried "hold". Then he came across another bandit who was armed both with a gun and a sword. This bandit took away the lathi from Tej Singh and gave him a beating. He saw that PW/3 Parikshit Singh was already sitting there. PW/3 Parikshit Singh was made to set ablaze documents and bahis, one of the bandits also slapped him. He was directed by these persons to set ablaze documents and bahis. He was also given some clothes by these persons. 6. First Information Report was lodged by Gir Raj Prashad on being informed by one Umedilal at about 10.00 a.m. at Alwar where Gir Raj Prashad had gone for the treatment of the burn on his leg. On this Gir Raj Prashad immediately returned home. Collected information and lodged a report with the police on February 1, 1973, at about 12.30 a. m. In the First Information Report Gir Raj Prashad did not mention the name of any of the accused persons. He submitted the inventory of the valuables taken away by these persons the following day. Gir Raj Prashad did not mention any distinctive features of the persons who had committed the dacoity. According to the FIR Ram Singh, Parikshit Singh are the persons who could identify the accused persons. The Investigating Officer arrested the accused, Deen Dayal, Shyam Singh and Udaibhan Singh. They were tried for the offence under Section 395, IPC. The learned Additional Sessions Judge acquitted Deen Dayal, but convicted Shyam Singh and Udaibhan Singh as stated above. 7. Shyam Singh was arrested on 3/11/1974, while Udaibhan Singh was arrested on 22/11/1974. The identification proceedings of Udaibhan Singh were conducted on 7/11/1974, while that of Shyam SiDgh on 26/11/1974, Shyam Singh accused was identified by PW/1 Shanti, PW/3 Parikshit Singh and PW/4 Tej Singh. Accused Udaibhan Singh was identified by Tej Singh and Parikshit Singh. 8. 7. Shyam Singh was arrested on 3/11/1974, while Udaibhan Singh was arrested on 22/11/1974. The identification proceedings of Udaibhan Singh were conducted on 7/11/1974, while that of Shyam SiDgh on 26/11/1974, Shyam Singh accused was identified by PW/1 Shanti, PW/3 Parikshit Singh and PW/4 Tej Singh. Accused Udaibhan Singh was identified by Tej Singh and Parikshit Singh. 8. It has been strenuously argued on behalf of the accused-appellants that the prosecution witnesses who are alleged to have identified the accused persons are totally unworthy of reliance as the incident is alleged to have taken place at about 11-00 O' Clock in the night. It has been contended that there was a lantern in the room of PW/1 Smt. Shanti and that the night was a moon-lit night. It was also contended that the faces of the accused persons could be identified at the time when the "bahis" and other documents were put to fire. 9. It was also contended that PW/1 Smt. Shanti has stated that she has been using these ornaments for the last 8 or 10 years, but she has failed to identify any of the ornaments at the time of identification. On the contrary, it was contended that PW/11 Hari Singh has stated that he has pledged his ornaments with Gir Raj Prashad 4 or 5 months prior to the dacoity. He has identified the ornaments at the time of identification. It was thus contended that the statement of PW1 Smt. Shanti has been completely contradicted by the statements of PW/11 Harisingh. 10. It was also contended that the identification has taken place in the month of November 1974 when the alleged incident is alleged to have taken place in the night intervening 30th and 31st January, 1974. it was strenuously argued that the identification of the accused persons at such a belated state is not worthy of credence at all and on the basis of such weak identification nobody can be convicted. It was further contended that when the First Information Report was lodged, it was registered only under Sections 380 and 358 IPC. It was, therefore, contended that on such weak type of evidence the conviction of the accused-appellants cannot be legally sustained. 11. On behalf of the State, it was contended that the identification of the accused persons was held soon after their arrest. It was, therefore, contended that on such weak type of evidence the conviction of the accused-appellants cannot be legally sustained. 11. On behalf of the State, it was contended that the identification of the accused persons was held soon after their arrest. It was also contended that the accused persons have been correctly identified as there was sufficient light in which the accused persons could be identified in the room of PW/1 Smt. Shanti. It was contended that a lantern was burning. It was contended that the night was a moon-lit night. It was also contended that when the account-books and documents were put to fire there was sufficient light in which the distinctive features of the accused persons could be identified. It was also contended that there has been a recovery of ornaments at the instance of the accused, Shyam Singh, and as such, the conviction of the accused, Shyam Singh, cannot be assailed as he was correctly identified and that the ornaments were also recovered at his instance. It was further contended that the identity of Udaibhan Singh and his participation in the dacoity has been proved beyond any shadow of doubt, and no case is made out for any interference on the appellate side. 12. The 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. 13. The accused, Deen Dayal, has been acquitted by the learned Additional Sessions Judge on the ground that he was known to the witnesses and that the various weapons of offence recovered in pursuance of the information led by him under section 27 of the Indian Evidence Act did not lead to the conclusion that the accused, Deen Dayal, was involved in the dacoity operation. The identification proceedings have been held by the learned Additional Sessions Judge to be not of much consequence. As regards Udaibhan Singh no valuable articles, alleged to have been taken away during the dacoity operation, have been recovered at his instance. The only factor which has prevailed upon the learned lower court is the identification of this accused by the prosecution witnesses. As regards Udaibhan Singh no valuable articles, alleged to have been taken away during the dacoity operation, have been recovered at his instance. The only factor which has prevailed upon the learned lower court is the identification of this accused by the prosecution witnesses. It has been very .strenuously argued on behalf of Udaibhan Singh that the identification proceedings have been held after a lapse of more than nine months and that under such circumstances it is highly improbable that the witnesses could identify the accused after such a long lapse of time, especially, when they had seen the accused for the first time either in a moon-lit night or in the light produced by the burning of the account books and the other documents. Nobody has been examined on behalf of the prosecution who could come forward and say that this bahis and other documents were burnt by the dacoits in the dacoity operation. In the First Information Report also, there is absolutely no mention of the account-books and other documents. 14. As against Shyam Singh accused there is the evidence-of his being identified during the identification proceedings and that gold ornaments were recovered at his instance. These gold ornaments were identified by PW/11 Harisingh. As regards the identification proceedings the same objection was raised on behalf of this accused also, which were raised to the identification proceedings pertaining to the accused, Udaibhan Singh. PW/11 Harisingh stated that he has pledged his ornaments with Gir Raj Prashad about four months prior to this incident. PW/1 Smt. Shanti however, stated that she has been wearing these ornaments for the last 8 or 10 years but she could not identify the ornaments during the identification parade. PW/11 Harisingh however, identified these ornaments. The prosecution has not produced any bahis from the custody or possession of Gir Raj Prashad which could establish that these ornaments were pledged by PW/11 Harisingh with Gir Raj Prashad. If the ornaments really belong to PW/1 Shanti as stated by her, and if she was wearing them for the last 8 or 10 years, then the version of PW/11 Harisingh becomes highly suspicious. The other factor which goes against the versions of PW/H Harisingh is that these pledged ornaments were recovered from the suit-case of PW/1 Smt. Shanti, and not from the possession of Git Raj Prasad, or from his shop. The other factor which goes against the versions of PW/H Harisingh is that these pledged ornaments were recovered from the suit-case of PW/1 Smt. Shanti, and not from the possession of Git Raj Prasad, or from his shop. In the face of these circumstances it is rather difficult to hold that the ornaments which were recovered at the instance of PW/11 Harisingh were really those ornaments which the dacoits had taken away from the suit-case of PW/1 Smt. Shanti. This becomes suspicious, especially more so, as Smt. Shanti, who has been wearing these ornaments for the last 8 or 10 years according to her own statement, could not identify any of these ornaments. In these circumstances, it becomes exceedingly difficult to hold that the recovery of ornaments at the instance of the accused. Shyam Singh, leads to an irresistible conclusion that Shyam Singh was involved in the dacoity operation. 15. The identification proceedings are by itself are weak type of evidence. In such a situation as mentioned above, it is really highly improbable to hold that the witnesses could recollect the impressions which they had about the accused persons after a lapse of more than nine Months. The accused persons, according to the prosecution story, had muffled their faces. The only light available was the moon-lit. There is no evidence on record to suggest that moon-light was available in the room of Smt. Shanti with such abundance that the face of Shyam Singh and Udaibhan Singh could be clearly seen. Thus the prosecution stroy of seeing the faces of the accused persons in the light which had eminated due to the burning of bahis and other documents does not deserve any credence. Firstly, there is no mention in the First Information Report and secondly, whose bahis and documents were burnt have hot been brought on record. The clothes which are said to have been given to Parikshit Siogh PW/3 have been given by him to the police after the lapse of three months. This very fact raises a serious suspicion about the prosecution version. 16. Out of the 8 or 9 people, as alleged by the prosecution, only three nave been arrested and that too after a lapse of more than nine months. The Investigating Officer has not stated any reasons as to why the names of the other persons could not be known. 16. Out of the 8 or 9 people, as alleged by the prosecution, only three nave been arrested and that too after a lapse of more than nine months. The Investigating Officer has not stated any reasons as to why the names of the other persons could not be known. Out of the three accused persons the learned Additional Sessions Judge has hold that the presence of Deen Dayal has not been established, it was strenuously argued on behalf of the accused persons that the prosecution has failed to establish that there we^re more than five persons involved in the alleged dacoity, and under such circumstances no offence is made out within the ambit of Section 395, IPC. 17. The learned counsel for the accused-appellant drew the attention of the court that the identification proceedings were totally a farce. The learned Magistrate did not take necessary precaution which ought to have been taken. It was contended that Shyam Singh was a' short statured-man and the other persons who were mixed up with him in the identification parade were all tall people. It was also contended that the accused Udaibhan Singh had distinctive features which the other persons mixed up with him did not have. 18. In Hindu Singh v. The State, 1952 RLW 130 , it has been held as under:- "Where the dacoity took place at night at about 8.30 P.M. on 28th January end it was not proved that there was sufficient light in which the accused could be identified and the accused did not remain standing at one place but moved to and fro it was held that it would be very risky to base conviction only on the evidence of identification. "Ordinarily people are so much stricken with terror at the time of a dacoity in which a Considerable amount of property is looted and guns fire and lathis used that it will be very difficult to base conviction only on the statement of a very small number of witnesses whose statements are not free from doubt." In Daryao Singh v. State, AIR 1952 RII 59 it has been held as follows:- "The value of identification evidence is very much minimised in the identification proceeding are held long after the occurrence. Human memory is fallible. Human memory is fallible. It is sometimes difficult to identify a person not very well- known whom one sews with a rather different appearance about fifteen months later after the crime has occurred.' In Musakhan v. State of Maharashtra, AIR 1976 SC 2566 , it has been held:- "We might like to mention that it was not at all necessary for the learned Additional Sessions Judge to have framed a charge under Sections 149/395, IPC because an offence under Section 395, IPC comes into existence only when an act of dacoity is committed by five or more persons jointly, and therefore, the question of applying Section 149, IPC is a more surplusage. At any rate, since the number of persons who have been proved to have stolen the cash box is less than five, the charge under Section 395, IPC as also that under Section 149, IPC must necessarily fail. We, therefore, alter the conviction of A-20 Saber Ali Khan and A-22 Mohd. Azam from that under Sections 149/395 IPC that under Section 392, IPC simpliciter and reduce their sentence under this section to one years' rigorous imprisonment each while maintaining the fine imposed on them by the Trial Court, The convictions and sentences on other count are set aside. In Khunoo v. State, AIR 1954 All 795 , it has been held as under:- "According to the six identifying witnesses they had last seen the accused during the course of the commission of a dacoity at which firing was taking place and did not see him against till a year later. Still all of them identified him and not one of them made mistake. Held, that the whole identification became suspicious." In Pirthi v. State, AIR 1966 SC 607 , it has been held as under "The rule the results of test identification parades separated by too long intervals of time should not be considered together caught to apply only to exclude later test identification parades and not earlier ones when the memory is fresher." "The correct way of showing that the evidence of identification is above board and reliable is that investigation authorities should try together from witnesses the particulars about the features and the actions of the persons seen. It may be that in some cases the features cannot be properly described by witnesses. It may be that in some cases the features cannot be properly described by witnesses. This is likely to be so when there is no special features in the appearance of an accused persons. Nevertheless the Investigating Officer must try to obtain descriptions from the identifying witnesses and say that they are unable to give any descriptions if that is the position in a case. The printed form used for the memorandum of a test identification paradel contains a note at the end showing that the Magistrate conducting a test parade should I ask the witnesses participating in the parade about the particular action in which they I saw a particular suspect whom they identify. This direction is invariably overlooked by Magistrate conducting test identification proceedings. The test identification proceedings would be more useful if, instead of containing descriptions of minute marks on the bodies of the suspects; they contained the statements of the identifying witnesses about the particular actions in which particular suspects were seen. This would help to make the test identification proceedings more reliable guides and more effective test of truthful identifications. Where the witnesses have disposed that the Investigating Officer did not ask for descriptions of the dacoits seen and the Magistrate who conducted the test identification proceedings did not ask the witnesses at the test prades about the particular act which they saw the suspect identified performing, these features would not be sufficient to justify discarding the evidence of identification all together although they may diminish its value." 19. Considering the probative value of the evidence on the record, it is exceedingly difficult to hold that the prosecution has succeeded in bringing the guilt home to the accused beyond all manner of doubt. Under these circumstances, the accused appellants are entitled to the benefit of doubt. 20. For the reasons stated above, the appeals filed by the accused-appellants are hereby allowed and their convictions and sentences under section 395. IPC are set aside. The accused-appellants are in judicial custody. They shall be released forthwith if not required in any other case. *******