JUDGMENT B. Kumar, J. - The appellant has been convicted under Section 396, I.P.C. and has been sentenced to imprisonment for life by judgment and order dated 2nd September, 1982 passed by the Sessions Judge, Unnao, in S.T. No. 258 of 1982. Two persons namely Khuni Singh and the appellant Ram Swaroop were prosecuted and convicted. However, it appears that no appeal has been filed by Khuni Singh. 2. According to prosecution case the dacoity in question was committed in the night between 23/24th November, 198: at the house of P.W. 1 Santosh Kumar in village Rampur khalsa, Police Station Ajgain, Distt. Unnao. During the course of the dacoity Smt. Kalawati, the mother of P.W.1 Santosh Kumar was killed as a result of firing resorted to by the miscreants. Cash, clothes, oranaments and utensils were looted by the dacoits. 3. It is said that co-accused Khuni Singh was recognised at the spot and he is said to have been armed with gun, the two other miscreants had pistols and the remaining 5 or 6 miscreants had Lathis and sticks. They had beaten witnesses with sticks and lathis also. So far light is concerned it is said that a lighted lantern was hanging in the room which provided light inside the house. Later on a heap of dry payal belonging to Santosh Kumar was also set on fire by the witnesses. The witnesses, who had arrived on the alarm raised, had torches also. The F.I.R. was lodged on 24th November, 1981 at 8.45 A.M. at Police Station Ajgain, District Unnao. Co-accused Khuni Singh was named in the F.I.R. The F.I.R. is Ext. Ka.1. It is said in the F.I.R. that the witnesses had recognised the other unknown accused persons who had participated in the crime and they could be recognised if brought before them. A list of looted property was also given alongwith the F.I.R. 4. The investigation was taken up by P.W.9 Sanman Singh. He examined the lantern which, according to the prosecution was burning inside the house and "found it in working order. It was given in the superdgi of Ram Gopal and a memo thereof Ex. Ka.20 was prepared. He took into possession ashes of payal from near the chabutra and prepared a recovery memo Ka. 21. He also examined the torches of the witnesses and found them in working order. A memo prepared whereof is Ext. Ka. It was given in the superdgi of Ram Gopal and a memo thereof Ex. Ka.20 was prepared. He took into possession ashes of payal from near the chabutra and prepared a recovery memo Ka. 21. He also examined the torches of the witnesses and found them in working order. A memo prepared whereof is Ext. Ka. 4. After taking usual steps he despatched the dead body of Smt. Kalawati for post-mortem examination. He also got the injuries of P.W.4 Santosh Kumar, P.W. 4 Jai Devi and Mahesh examined at Primary Health Centre, Nawabganj. Injury reports of the above mentioned injured persons were prepared and had been filed indicating that they had received injuries by blunt weapons whereas P.W.1 Santosh Kumar had received gun shot injury also. The injuries were examined by P.W.5 Dr. R.C. Sharma. The postmortem examination was conducted by P.W. 7 Dr. J.N. Bajpai who had found injuries including gun shot on the dead body of Smt. Kalawati. The post-mortem examination report is Ex. Ka.9 on 26th November, 1981 the Investigating Officer P.W. 9 Sanman Singh arrested the appellant alongwith the named accused Khuni Singh from country liquor shop in Bashiratganj. He had also recovered a jhola from the appellant containing the looted property. He prepared a recovery memo of the jhola which is Ext. Ka.B. The jhola contained two brass thalis, one Sari, two dhotis, one brass Iota and one battoi. Sri Krishna and P.W. 6 Ram Narain are the recovery witnesses. The police party, while going to arrest the accused persons had picked up the recovery witnesses on way to the liquor shop. Test identification parade relating to the appellant was held on 11th January, 1982. The identification memo is Ext. Ka.10. Charge sheet as against the co-accused Khuni Singh was filed on 25th December, 1981 and as against the appellant Ram Swaroop, it was submitted on 22nd February, 1982. Test identification parade relating to the looted property was held on 24th February, 1982. The articles were identified by P.W.1 Santosh Kumar and P.W. 4 Smt. Jai Devi. 5. To prove its case the prosecution has examined P.W. 1 Santosh Kumar, P.W. 2 Bhagwati Prasad, P.W. 3 Chhiddu and P.W. 4 Jai Devi as eye witnesses. P.W.5 Dr. R.C. Sharma, has examined the injuries of Santosh Kumar, Smt. Jai Devi and Mahesh and proved the injury reports Ext. Ka.5, Ka-6 and Ka- 7. 5. To prove its case the prosecution has examined P.W. 1 Santosh Kumar, P.W. 2 Bhagwati Prasad, P.W. 3 Chhiddu and P.W. 4 Jai Devi as eye witnesses. P.W.5 Dr. R.C. Sharma, has examined the injuries of Santosh Kumar, Smt. Jai Devi and Mahesh and proved the injury reports Ext. Ka.5, Ka-6 and Ka- 7. P.W. 6 Ram Narain is witness of recovery of jhola and articles contained therein at the time of arrest of the accused persons. P.W. 7 Dr. J.N. Bajpai has performed the post-mortem examination on the dead body of Smt. Kalawati. P.W. 8 B.S. Chauhan is the Special Executing Magistrate who has conducted the identification parades in respect of the appellant as well as relating to the articles recovered from the accused persons. P.W. 9 Sanman Singh, S.I. has investigated the case and has filed charge sheet. P.W. 10 Iqbal Haider is Head Constable and has proved entries of the General Diary of the Police Station. Affidavits of some other constables have been filed to provide link evidence about the deposits of looted property and baparda movement of the accused from one place to the other. 6. The appellant has denied the charge and claimed to be tried. He has stated that he was actually arrested in Unnao by the police and was brought to Police Station. He has also stated that nothing was recovered from his possession. According to him he was got identified to the prosecution witnesses. He has further stated that he had worked for one year with one Rameshwar. Complainant P.W. 1 Santosh had some dispute with Rameshwar and therefore he has been falsely implicated with the aid of one Ram Singh who is police dalal. In his defence he has filed an affidavit of Rameshwar to show that he was employed at his (Rameshwar's) place for looking after agricultural work. The affidavit is Kha-1. The accused had worked for one year with Rameshwar, so the village people where Rameshwar resides and where the dacoity had taken place, knew the appellant. 7. The evidence against the appellant is that of his identification by the witnesses in the test identification parade supported by the recovery of jhola containing looted articles. The affidavit is Kha-1. The accused had worked for one year with Rameshwar, so the village people where Rameshwar resides and where the dacoity had taken place, knew the appellant. 7. The evidence against the appellant is that of his identification by the witnesses in the test identification parade supported by the recovery of jhola containing looted articles. A perusal of identification memo of appellant Ram Swaroop indicates that the parade was held on 11th January, 1982 and out of 10 witnesses, who had been sent to identify him, 8 had correctly identified him without committing any mistake. Out of these 8 persons who had identified him P.W. 1 Santosh Kumar and P.W. 3 Chhiddu have beer examined in Court. 8. The learned counsel for the defence has not challenged the findings recorded by the trial court relating to the date, time and place of occurrence as having taken place as alleged by the prosecution nor the source of light etc. has been challenged. However, the learned counsel for the appellant has submitted that the recovery of jhola containing looted articles cannot be fastened upon the appellant as, according to him, the prosecution itself is in doubt about the fact as to from whom the recovery was made. In that connection he has drawn our attention to the statement of P.W.6 Ram Narain who has very specifically stated in para 1 of the examination in-chief that the jhola was in the hand of co-accused Khuni Singh which contained dhotis, batloi, Iota and thalis etc. The other recovery witness namely Sri Krishna has not been examined by the prosecution. it may be noted that the recovery witness P.W. 5 Ram Narain does not belong to the village of the accused person. He is resident of Bashiratganj. Further he was picked up by the Investigating Officer while going to arrest the accused persons and was taken on the Jeep alongwith the police party. The prosecution did not choose to declare this witness hostile. The other circumstance which has been pointed out to us by the learned counsel or the appellant is that the recovery of the Jhola has been put to both the accused persons namely Khuni Singh as well as to the appellant in their statements under Section 313, Criminal Procedure Code. The prosecution did not choose to declare this witness hostile. The other circumstance which has been pointed out to us by the learned counsel or the appellant is that the recovery of the Jhola has been put to both the accused persons namely Khuni Singh as well as to the appellant in their statements under Section 313, Criminal Procedure Code. Question No 13 put to the co-accused Khuni Singh is to the effect that "Aap Logonne Santosh Ke Ghar Ka loote huye mal sahit jo K 1 to 7 hai Bashiratganj ke sarak ke kinare Sharab ke Theke ke pas giriftkar kiya ..............." A similar question was put to the appellant being question No. 13 of his examination. From the above it is clear that the prosecution itself is in doubt about the recovery of jhola as to from whose possession it was recovered. The way the recovery has been put to the accused persons is vague. The prosecution case that the jhola was recovered from the appellant has not been clearly put to him. In the above circumstances it cannot be held that the alleged recovery of jhola was made from the appellant and the said evidence cannot be used against the appellant. 9. Now we are left only with the evidence of identification against the appellant. As pointed out earlier, out of ten persons who had been sent to identify the accused persons eight has identified the appellant without committing any mistake. Out of the said eight persons only two have been examined in Court namely P.W. 1 Santosh Kumar and P.W. 3 Chhiddu. Normally two good identifications against an accused person are sufficient to sustain conviction. However, the learned counsel for the appellant has submitted that the appellant was arrested on 26th November, 1981 whereas the identification parade was held on 13th January, 1982 that is to say after a lapse of 45 days. According to him there is unexplained delay on the part of the prosecution in conducting the test identification parade. In this connection he has placed reliance on a case reported in Soni v. State of U.P., (1982) 3 SCC 368 . In that case the identification parade was held after 42 days of arrest. According to him there is unexplained delay on the part of the prosecution in conducting the test identification parade. In this connection he has placed reliance on a case reported in Soni v. State of U.P., (1982) 3 SCC 368 . In that case the identification parade was held after 42 days of arrest. It has been observed by the Hon'ble Supreme Court that the delay in holding the identification parade throws doubt on the genuineness thereof apart from the fact that it is difficult that after a lapse of such a long time the witnesses would be remembering the facial expression and features of the appellant. The contention of the learned counsel for the appellant is that in the case in question the appellant was put up for identification after 45 days, therefore, no reliance can be placed on the identification evidence against the appellant. In the case in hand we find that besides the delay in conducting the identification proceeding, for which there is no explanation in the statement of the Investigating Officer. Another feature is that out of ten witnesses who had gone to identify the accused eight witnesses had identified the appellant without committing any mistake. The other two witnesses, who did not identify the appellant in the identification parade, also did not commit any mistake. The result is that out of ten witnesses sent for identification none committed any mistake and eight of them had correctly identified although the identification parade was not held immediately or soon after the arrest of the appellant. The performance of the witnesses in the identification proceedings is not too natural to inspire confidence. In the context of the above position, the defence taken by the appellant assumes importance. He has stated in his defence that he had worked as agriculture labour with one Rameshwar Singh of village Rampur Khalsa. There the identifying witnesses had an occasion to see and recognise him. In support of the defence plea reliance was placed on the affidavit filed by Rameshwar Singh accompanying the application for bail moved on behalf of the appellant. We find that the trial court was right in not taking into consideration the affidavit filed by Rameshwar Singh but still the statement of the accused remains there which cannot be totally ignored looking to the facts and circumstances of the case. We find that the trial court was right in not taking into consideration the affidavit filed by Rameshwar Singh but still the statement of the accused remains there which cannot be totally ignored looking to the facts and circumstances of the case. May be that it has not been possible for the appellant to have produced Rameshwar Singh as a witness in the Court to prove his defence case to the effect that the witnesses had an opportunity to see and recognise him but the circumstances which have been indicated in the earlier part of this judgment go to show that the possibility cannot be ruled out that the witnesses may have seen the appellant earlier. In view of the above we find that it would not be safe to place explicit reliance upon the identification evidence which is the only evidence that remains against the appellant. 10. In the result the appeal succeeds and is all allowed. The conviction and sentence passed against the appellant is set aside and he shall be released forthwith unless wanted in connection with any other case.