JUDGMENT 1. Both these criminal appeals arise out of the same judgment of the learned Addl. Session^ Judge, Bharatpur, dated November 20, 1976, whereby the accused-appellants have been convicted under Section 395, IPC and sentenced to five years rigorous imprisonment and a fine of Rs. 1000/-, and in default of payment of fine to a further rigorous imprisonment for one year. 2. As both these appeals are based on common facts they shall be disposed of by one single judgment. 3. In brief, the prosecution case is that Mahesh Chandra lodged an FIR at 4 a.m. on 10-7-1973, contending that at about 1 a.m., eight persons entered his house and beat Ramjilal and Ram Chandra. They also beat the ladies and decamped with jewellery, ornaments and cash. SHO Murari Lal PW/12 registered the case and started investigation. He recovered a lathi which the culprits had left behind. After investigation, a challan under Section 395 read with Section 497, IPC was filed against Ratan Lal, Yad Ram, Dharam Singh, Pannalal, Badan Singh and Gir Raj. The learned Addi. Sessions Judge by his judgment dated November 20, 1976 acquitted Ratan Lal, Dharma Singh, Pannalal and Badan Singh, but convicted Yad Ram and Gir Raj as stated above. 4. On behalf of the accused-appellant, Gir Raj. it was contended that, though the incident took place on 10-7-1973, the accused, Gir Raj, was arrested on 19-1-1974 It was further contended that no identification parade was held with regard to this accused-appellant. It was also contended that the information alleged to have been given by him under Section 27 of the Indian Evidence Act was not recorded correctly and that the ornaments alleged to have been recovered on the basis of this information have not been linked with the stolen property. It was also contended that the prosecution case is that these ornaments were sold to PW/15 Bedaria Sunar. But Bedaria Sunar has totally denied that he ever received these omamentsl. It was, there fore, contended that there is absolutely no case against the accused-appellant Gir Raj. 5. On behalf of the accused-appellant, Yad Ram, it was contended that though he was arrested on 5-2-1975, the identification parade was held on 31st January, 1975. It was contended that without arresting the accused the identification parade held by the prosecution is totally vitiated and casts a serious suspicion about the solemnity of the proceedings. 5. On behalf of the accused-appellant, Yad Ram, it was contended that though he was arrested on 5-2-1975, the identification parade was held on 31st January, 1975. It was contended that without arresting the accused the identification parade held by the prosecution is totally vitiated and casts a serious suspicion about the solemnity of the proceedings. It was further contended that the Jailor had sent his letter dated 31-1-1975 Ex. D/4 informing the learned Magistrate that he had no persons resembling the accused-appellant, Yad Ram, and as such, it would not be possible for him to mix up such persons at the identification parade. It was also contended that one Chaprasi was brought by the learned Magistrate to be mixed up in the identification parade. Yad Ram is said to be of 70 years and of a long stature, while the chaprasi, who was brought was, 45 years of age and was of a short stature. It was, therefore, contended that the identification proceedings were totally of a sham character and could not inspire the confidence of this Court. It was further contended that the identification parade held after a great lapse of time. It is humanly impossible that the photographic impression which the witnesses might have had about the accused persons could be of such a nature that the accused persons could be identified after a lapse of a year and a half. It was also contended that the identification proceedings are not a substantive piece of evidence and are by itself a very weak evidence. It was, therefore, contended that in the absence of any recovery of the articles having been made from the accused-appellant, Yad Ram, or at his instant, the prosecution has not succeeded in establishing any case against the accused-appellant, Yad Ram. 6. On behalf of the State, the learned Public Prosecutor was heard. 7. The respective contentions of the learned counsel for the accused-appellants and the learned Public Prosecutor have been considered and the record o. the case carefully perused. 8. In the FIR, Mahesh Chandra has only stated that eight persons beat the persons who were sleeping in the shop of Ramji Lal Ram Chandra and that after climbing the roof they entered the house, beat the ladies and went away with ornaments and cash. 8. In the FIR, Mahesh Chandra has only stated that eight persons beat the persons who were sleeping in the shop of Ramji Lal Ram Chandra and that after climbing the roof they entered the house, beat the ladies and went away with ornaments and cash. The contention of the learned counsel for the accused-appellants was that no specific marks of identification of any of the accused persons was mentioned in the FIR. The accused-appellant, Gir Raj, is said to have been arrested on 19-1-1974. There is no memo of arrest on the file of the case. The identification parade with regard to Gir Raj while he was in custody, is said to have not been held. It was contended that Gir Raj had given information under Section 27 of the Indian Evidence Act vide Ex. P/20, wherein he has stated that out of the cash and ornaments looted in the dacoity, he had received Rs. 700/ cash and gold and silver ornaments. He further stated that he had sold away the gold ornaments for Rs. 800/- and silver ornaments for Rs. 100/- to Bedaria Sunar PW/15. Bedaria Sunar PW/15 totally denied the ornaments having been purchased by him or any article having been recovered from him. The witness was declared hostile at the request of the prosecution. PW/l Mahssh Chandra has stated that he was sleeping out side the shop. 7-8 persons came there and awoke his brother. These persons were armed with `dandas, rifles pistols etc. As soon as these accused persons came they called out the name of Ramjilal. When Ramjilal woke up the accused persons started beating him. Besides Ramjilal, Krishpa Bux and Ramesh Chandra were also sleeping there. Accused persons started beating all of them. The accused wanted to catch hold of him, but he ran away, and saw the happenings from a distance. The accused tried to break open the door, but having failed to do so some of the accused climbed over the roof and opened the gate from inside. They started beating the ladies. There was a lantern which was burning outside the shop. The accused had torches with them, and in the light of the torches he had seen the accused persons. He had not shown his injuries to the police. They started beating the ladies. There was a lantern which was burning outside the shop. The accused had torches with them, and in the light of the torches he had seen the accused persons. He had not shown his injuries to the police. He has further stated that when the accused were committing dacoity he had gone to call the police from the Mahua Police Station. At the time when the accused, Yad Ram, was committing dacoity, he had no beard. At that time he had not seen his death. 9. PW/3 Ramjilal was also examined, but he does not help the prosecution case in any way. PW/4 Ramesh Chandra has stated that he was awakened by the voice of the accused persons. The accused persons were armed with dandas, rifles, pistols etc. Mahesh Chandra PW/1 succeed in running away as soon as the door of the shop was opened from inside. The witness also went and stood near Mahesh Chandra PW/1. Then a voice came from inside that don't beat anybody the property has been received. The dacoits then went away withing 2-3 minutes. When these dacoits were beating the ladies he had asked Mahesh Chandra to go to the Mahua Police Station. He identified the accused in the light of the lantern and the flashes of the torches which the accused had with them. There was slight moon-light also. 10. PW/6 Shyam Singh, SDO, has stated that on 31-1-1975, he was posted as Judicial Magistrate. The identification parade was held by him after mixing 11 more persons. Mahesh Chandra and Ramesh Chandra correctly identified Yad Ram. Witness Mahesh Chandra identified Yad Ram after having taken a number of rounds after a long time. Mahesh Chandra first identified a wrong person, and then he identified Yad Ram at a latter stage. The identification parade was not held on 30-1-1975, as persons resembling the accused were not available, the identification parade was postponed to 31-1-1975. The witness admits that he had received Ex, D/4 the letter from the Jailor stating that he had no person available with him who can be said to be resembling accused Yad Ram. 11. The identification parade was not held on 30-1-1975, as persons resembling the accused were not available, the identification parade was postponed to 31-1-1975. The witness admits that he had received Ex, D/4 the letter from the Jailor stating that he had no person available with him who can be said to be resembling accused Yad Ram. 11. It has been strenuously argued on behalf of the accused-appellant Gir Raj that in his case there has been no identification proceedings and that the allegations that the accused, Gir Raj had sold the gold and silver orgaments to PW/15 Bedaria Sunar has been totally shattered by the denial of the witness PW/15. It was also contended that no recovery has been made at the instance of Yad Ram, and that the identification proceedings in the instant case in the circumstances mentioned above, are not worthy of credence. Mahesh Chandra identified Yad Ram, though after taking a number of rounds. Mahesh Chandra first identified a wrong person, and then identified Yad Ram. The identification proceedings have been held after a lapse of a year and six months. No special marks of features of the accused-appellant have been mentioned in the FIR. It was further contended that the evidence of PW/3 Ramjilal does not help the prosecution at all 12. It was also strenuously contended that on the appreciation of the evidence, the learned Addl. Sessions Judge acquitted the remaining four accused persons. It was, therefore, contended that there is hardly any justification left for sustaining the conviction of these two accused-appellants. It was contended that accused-appellant Gir Raj has already suffered an imprisonment for more then 31/2 year, as he was arrested on 19-1-1974. Accused-appellant Yad Ram was arrested on 5-2-1974, and he has also suffered an imprisonment exceeding 21/2 years. The learned counsel for the accused-appellants has relied on Dasuram v. The State, 1951 RLW 74 and Nathu v. State, AIR 1968 AU 467 . 13. With regard to the statement under Section 27 of the Indian Evidence Act it would be suffice to say that in pursuance of the information laid by the accused appellant, Gir Raj, certain ornaments were recovered from the house of PW/15 Virendra singh, it is established that Yad Ram was arrested on 7-1-1975 in connections with a murder case, and was in judicial custody in Agra Jail. He was arrested in the dacoity case on 5-2-1975. He was arrested in the dacoity case on 5-2-1975. Accused-appellant Yad Ram has been identified by PW/l Mahesh Chandra and PW/4 Ramesh Chandra. At the identification parade he was mixed up with 11 persons, five of them were from the jail itself and six were brought from the outside, under the directions of the magistrate concerned. The statement of PW/I Mahesh Chandra and the statement of PW/4 Ramesh Chandra clearly establish that these two witnesses had ample opportunity of identifying the accused-appellant Yad Ram. There does not appear to be any infirmity in the view taken by the learned Addl. Sessions Judge that the prosecution has succeeded in bringing the guilt home to the accused-appellant, Yad Ram. 14. As regards accused Gir Raj, the prosecution has failed to bring the guilt home to him. Gir Raj was not put to any identification, and even the articles said to have been recovered at his instance have not been satisfactorily proved. PW/15 Bedaria Sunar has denied the purchase of the gold and silver ornaments and also denied that the police made any recovery from him. There is no convincing and corroboration evidence which can inspire the confidence of the court. Under these circumstances, the accused appellant, Gir Raj deserved to be given the benefit of doubt. 15. For the reasons stated above, the appeal filed by Yad Ram is hereby dismissed His conviction and sentence awarded by the learned Addl. Sessions Judge are hereby confirmed. The accused-appellant and the jail authorities be informed accordingly. 16. The appeal filed by the accused appellant Gir Raj is hereby allowed. His conviction and sentence under Section 395, IPC are hereby set aside. Accused appellant Gir Raj is in the judicial custody. He shall be released forthwith if not required in any other case. *******