JUDGMENT 1. - This appeal is directed against the judgement passed by the learned Sessions Judge, Bhilwara dated February 10, 1978 by which the learned Sessions Judge convicted the accused-appellant under sections 395 and 342, Indian Penal Code and sentenced him to five yearsrigorous imprisonment and a fine of Rs. 1,000/- for the offence under section 395, Indian Penal Code and for six months rigorous imprisonment for the offence under section 342, Indian Penal Code with a further order that both the substantive sentences will run concurrently. For the fine it was ordered that in default of payment he will undergo six months rigorous imprisonment. 2. The allegations against the accused were that he on April 4, 1976 alongwith few companions of his went to the jungle where Chhitar, servant of the complainant Devi, and another boy Kana alias Khana were grazing the goats. The accused with the co-accused Rama (since acquitted) and four others, said to be absconding, tied the mouth of Chhitar and Kana and took them to some distance and tied them with a tree. Thereafter they took 150 goats belonging to Devi, which Chhitar and Kana were grazing in the jungle. Rama and Nania accused-appellant having been arrested 96 goats are said to have been recovered from different-persons at their instance. One pair of shoes art. 3 is also said to have been recovered from the tent belonging to the accused-appellant, two axes arts. 1 and 2 are said to have been recovered from the possession of the two accused, who are said to be absconding. The matter was reported by Chhitar to Devi owner of the goats on the same evening of April 4, 1976 and he wrote down the first information report on that day and sent the same on the next day to the police station, Bijoliya, where a case under sections 395 and 342, Indian Penal Code, was registered. After completion of the investigation against the two accused Nania alias Bhanwariya and Rama a charge sheet against them was filed in the Court of Magistrate, who committed them to the Court of Sessions Judge, Bhilwara for trial. The learned Sessions Judge charge sheeted the accused for the aforesaid offences and recorded their plea. Both the accused denied the allegations and claimed to be tried. 3. The prosecution examined thirteen witnesses. The accused in their statements totally denied the allegations of the prosecution. The learned Sessions Judge charge sheeted the accused for the aforesaid offences and recorded their plea. Both the accused denied the allegations and claimed to be tried. 3. The prosecution examined thirteen witnesses. The accused in their statements totally denied the allegations of the prosecution. No defence witness was examined. The learned Sessions Judge acquitted accused Rama but placing reliance on the testimony of the eye-witnesses Chhitar and Kana convicted the accused-appellant, as mentioned above. 4. The learned counsel for the accused strenuously contended that the prosecution case hinges on the testimony of two witnesses viz. Chhitar and Kana and both of them have been shattered in the cross examination. So far as the identification of the accused is concerned, it has been stressed by the learned counsel that on the same evidence the learned Sessions Judge has been pleased to acquit the accused Rama and without there being any distinguishing case against the accused appellant he has convicted him. It has also been urged by the learned counsel that the learned Sessions Judge has erred in placing reliance on the recovery of the pair of shoes art. 3 which even if assumed to be true is an article of most common pattern. 5. The learned Public Prosecutor has nothing to say so far as the contention about the identification matter is concerned but regarding the recovery of the pair of shoes from the tent said to be belonging to the accused-appellant his contention is that the pair of shoes has been identified by Chhitar witness as belonging to him and even on this solitary evidence the conviction of the accused Nania-appellant can be said to be justified. 6. Having heard arguments from both the sides, I gave my anxious consideration to the material on the record. There is common evidence of identification against the accused Nania and accused Rama. The two witnesses, on whom the prosecution has relied, so far as the identification is concerned, are Kana (P. W. 5) and Chhitar (P. W. 9). These two witnesses have correctly identified the accused in the Court but in cross-examination it has become clear that the identification parade was a farce. The witness Kana has stated that he is unable to say as to how many persons had come there to commit the dacoity. These two witnesses have correctly identified the accused in the Court but in cross-examination it has become clear that the identification parade was a farce. The witness Kana has stated that he is unable to say as to how many persons had come there to commit the dacoity. He has admitted that he had not seen any-body's face and his eyes as well as those of Chhitar were tied and therefore they could not make out who were the persons who had taken the goats. He also could not say what type of clothes the culprits were putting on. He admitted that he is not aware with the names of the accused even till the date of his statement. It has also been stated by him that when he went to the police station, after recovery of the stolen goats, the two accused Rama and Nania were present there in the courtyard of the police station, and it was thereafter that he had been taken to the jail to identify the accused persons. Similar is the statement of Chhitar (P. W. 9). He has stated that the miscreants just on arrival tied his eyes, and therefore nothing was visible. According to him, after the recovery of the goats he was taken to the police station, where there were number of persons, including ladies and the two accused were made to sit in the courtyard of the police station. He admitted that he had seen the accused at the police station, Bijoliya prior to the identification. In view of this type of admissions of these two witnesses to have seen the accused at the police station, prior to the identification parade, I have no hesitation to say that the identification conducted by the Sub-Divisional Officer was a farce and this type of evidence cannot be taken help of by the prosecution in convicting the accused. The Only evidence against the accused-appellant distinguishing his case from the accused Rama is the recovery of pair of shoes from his tent. Chhitar has stated that the shoes were new and he had put on the same only for a day or two. The Only evidence against the accused-appellant distinguishing his case from the accused Rama is the recovery of pair of shoes from his tent. Chhitar has stated that the shoes were new and he had put on the same only for a day or two. In such circumstances when there is no evidence about there being any specific mark or type of shoes and the evidence about the type of shoes mixed in the parade is not clear, and the learned Sub-Divisional Officer while appearing in the witness-box has admitted that he took the shoes of the litigants which they were putting on, to be mixed in the parade, I am constrained to say that on such scanty feeble evidence the conviction of the accused for such a serious offence cannot be said to be justified. 7. Hence I accept the appeal, set aside the conviction and sentence passed against the accused-appellant and acquit him of the charges. He is in jail. He will be set at liberty forth-with, if not required in any other case.Appeal allowed/Appellant acquitted. *******