G. B. SINGH, J. This is an appeal against the judgment and order dated 17-10-1981 of the Sessions Judge, Sultanpur, convicting Babu Lal alias Khur Bhur and Pancham appellants for the offences under Sections 302/149, 307/149, 436/149 and 148, I. P. C. and sentencing them to imrisonment for life, ten years R. I. , seven years, R. I. and three years, R. I. , respectively, and making the sentences to run concurrently. 2. The case of the prosecution was that about three months before the occurrence Berra, Jodha of Ram Naresh, who were brothers and notorious dacoits, were staying with one Shital Pasi of Village Khadri. Chandra Bali informant and other persons of village Khadri came to know of it and they surrounded the house of Shital Pasi and apprehended Ram Naresh. Other dacoits ran away. Ram Naresh was first kept tied up with a tree and on arrival of the police he was handed over to it by Chandra Bali and others. On account of his incident his brothers Berra and Jodha were harbouring ill-will against Bali and other persons of the village. Since Berra and Jodha wanted to take revenge Chandra Bali and other persons of the village used to remain on patrol in the village during night time. On the night between 12/13-1-1980 at about midnight Chandra Bali, Bajrang Bahadur, Ram Khelawan, Suraj Din, Sadhu, Sheo Dularey, Prem and others were on patrol duty. Since it was a winter night they came near the Marha of Chandra Bali and started warming them up by burning some rapta. At that time 15 or 16 persons armed with guns and rifles came near them and started firing indiscri minately. Chandra Bali and others started running away. Ram Suraj Din, Sadhu and Bajrang Bahadur received bullet injuries and died on the spot. On the alarm raised Soyember Singh and Smt. Deoraji rushed for the rescue but they were also shot dead by the miscreants on the spot. Jawahar, Sheo Dulare and Prem also received bullet injuries at the time of the incident. The mis creants thereafter set fire to the Osara of Chandra Bali Singh. The dacoits remained there till the Osara was completely burnt and during this period they continued to hurl abuses against the village people. The miscreants thereafter went away towards North. Jawahar, Sheo Dulare and Prem also received bullet injuries at the time of the incident. The mis creants thereafter set fire to the Osara of Chandra Bali Singh. The dacoits remained there till the Osara was completely burnt and during this period they continued to hurl abuses against the village people. The miscreants thereafter went away towards North. On the alarm raised some person of the village, Raj Mangal Singh, Sheo Mangal Singh and Srinath Singh also rushed. Out of them Srinath Singh and Bharat Singh and Srinath Singh and they were flashing them. In the light of the flames of Osara and electric torches the informant and others recognised Berra alias Bisheswar, Jodha and Babu Lal among the miscreants. 3. The first information report of the incident was lodged by Chandra Bali Singh on 13-1-1980 at 7. 10 a. m. The distance of Police Station from the village is about ten miles. On the basis of the report lodged a case under Sections 147/302/436/141/149 I. P. C. was registered. S. O. Uma Shanker Misra (PW 7) was present at the Police Station. He interrogated Chandra Bali Singh, informant, at the Police Station and reached the place of incident at about 10 a. m. There he prepared inquests of the dead bodies and sent them for post mortem examination. He found several fired cartridges on the spot and Osara of Chandra Bali Singh, destroyed by fire. He inspected the torches of Bharat Singh and Srinath Singh and prepared their Fards on 14-1-1980. He examined Raj Mangal Singh and other witnesses and seat Jawahar and Sheo Dulare or medical examination. He prepared site plan also on that date. He arrested Babu Lal appellant on 20-1-1980. Jawahar injured died in the District Hospital, Sultanpur, on 26-1-1980. He completed investigation against Babu Lal on 20-1-1980 and submitted charge sheet against him. Thereafter S. O. Uma Shankar Misra was transferred from P. S. Aroethi and the investigation was taken up by S. O. Ram Shiroman (PW 10 ). He arrested Pancham appellant on 6-11-1980. He was made Sapurdah after the arrest and sent to jail. He was put up for test idendification parade on 22-1-1981. The test identification parade was conducted by Sri Rana Nand Singh, Magistrate (PW 2 ). Pancham appellant was correctly identified by Chandra Bali Singh and Raj Mangal Singh. He arrested Pancham appellant on 6-11-1980. He was made Sapurdah after the arrest and sent to jail. He was put up for test idendification parade on 22-1-1981. The test identification parade was conducted by Sri Rana Nand Singh, Magistrate (PW 2 ). Pancham appellant was correctly identified by Chandra Bali Singh and Raj Mangal Singh. After his test identification investigation was completed against him and charge-sheet was submitted by S. O. Ram Siromani Pandey (PW 10 ). 4. On behalf of the prosecution 11 witnesses were examined to prove its case. Dr. R. K. Mathur (PW 1) conducted the post mortem examination on the dead bodies of Soyember Singh, Bajrang Bahadur and Smt. Deoraji. He found gun shot injuries on their persons. According to him death of these persons was caused due to firearm injuries. Dr. O. P. Sharma (PW 3) conducted the post mortem examination on the dead bodies of Ram Khelawan, Suraj Din and Sadhu. He also found firearm injuries on their persons and according to him their death was caused due to shock and haemarrhage as a result of the aforesaid injuries. Dr. C. K. Gupta examined the injuries of Jawahar and Sheo Dularey. He also found gun shot injuries on the persons of these injured persons. When Jawahar died on 21-1-1980 the post mortem exami nation was conducted by Dr. C. K. Gupta (PW 4) Chandra Bali Singh (PW 5) and Raj Mangal Singh (PW 6) are the eye-witnesses of the occurrance. S. O. Uma Shankar Misra (PW 7) and S. O. Ram Shromani Pandey (PW 10) investi gated the case. Rama Nand Singh, Magistrate (PW 8) held the test identifica tion parade of Pancham accused. The evidence of other witnesses is of formal nature. 5. The appellants denied the charge and pleaded not guilty. Their defence was not they were falsely implicated in the case on account of enmity with the police. They did not examine any witness in defence Babu Lal produced three papers, Exts. Kha 1 to Kha 3, to show that he had been previ ously implicated in a criminal case under Section 25, Arms Act. The learned Sessions Judge believed the prosecution evidence against Babu Lal and Pan cham appellants and convicted and sentenced them as mentioned above. Feeling dissatisfied with it they have filed the present appeal. 6. Kha 1 to Kha 3, to show that he had been previ ously implicated in a criminal case under Section 25, Arms Act. The learned Sessions Judge believed the prosecution evidence against Babu Lal and Pan cham appellants and convicted and sentenced them as mentioned above. Feeling dissatisfied with it they have filed the present appeal. 6. It was not disputed by the learned counsel for the appellants that the occurrence took place on the night between 12/13-1-1980 at about mid-night and in it Bajrang Bahadur Singh, Soyamber Singh, Sent. Deoraji, Ram Khelawan, Suraj Din, Sadhu and Jawahar received gunshot injuries as a result of which they died. It was also not challenged on behalf of the appel lants that Osara of Chandra Bali Singh was set on fire on the relevant night. He has simply assailed their participation in the crime. Since Babu Lal alias Khurbhur appellant is named in the first information report and the case against Pancham appellant rests on identification evidence their cases are taken up separately to see if they were among the miscreants who committed the alleged crime. 7. Pancham Pancham appellant was arrested on 6-11-1980 and was put up for identification in the test parade on 22-1-1981. In the test identification parade he was correctly identified by Chandra Bali Singh (PW 5) and Raj Mangal Singh (PW 6 ). At the time of evidence also these witnesses stated that he was among the miscreants who committed the crime. The learned counsel for the appellant argued that this evidence is not worthy of reliance. We find much force in this argument. 8. S. O. Uma Shanker Misra (PW 7) stated that he came to know about the complicity of Pancham on 20- 1-1987 when he interrogated Babu Lal appellant immediately after his arrest. There is no explanation on behalf of the prosecution as to why Pancham was not arrested till 6-11-1980. S. O. Ram Siromani Pandey (PW 10), who took up investigation of the case on 27-2-1980 on the transfer of S. O. Uma Shanker Misra (PW 7) stated in cross-examination that he did not go to the house of Pancham appellant to arrest him. It may be mentioned here that Pancham was arrested on 6-11-1980 at a place which is at a sufficient distance from his house. It may be mentioned here that Pancham was arrested on 6-11-1980 at a place which is at a sufficient distance from his house. Thus there is no explanation on behalf of the prosecution about ten months delay in the arrest of Pancham appellant. Not only this, the prosecution has not explained as to why he was not put up for identification at the test parade immediately after his arrest and the delay of 2 months occurred in holding his test parade. Raj Mangal Singh (PW 6) stated in cross-examination that Pancham was known to him from before the occurrence. He has further stated that Pan cham lives in a neighbouring village. In view of this admission the identifica tion of Raj Mangal Singh (PW 6) becomes worthiless. Thus, the solitary identification of Chandra Bali Singh (PW 5) remains against Pancham appel lant. Since it is undisputed that Pancham lives in a neighbouring village and Raj Mangal Singh had admitted that he was known to him, the evidence of identification of Chandra Bali Singh (PW 5) also becomes of doubtful nature. It is significant to mention in this connection that the description of Pancham appellant has not been given in the F. I. R. and during investigation also the witness did not give any description of features of the appellant. From the observations made in Subhash and Sheo Shanker v. State, 1987 Cri LJ (SC) 991 it is evident that where test identification parade is held after a delay of 4 months and witnesses did not give any description of accused in the F. I. R, or in their statements during investigation, the evidentiary value of the witnesses of identification is much minimised and on their statements convic tion cannot be based. Having regard to all this we are clearly of the opinion that the case against Pancham appellant had not been proved by convincing evidence and he is entitled to get the benefit of doubt in any view of the matter. 9. Babu Lal alias Khur Bhur He is named in the F. I. R. Chandra Bali Singh (PW 5) and Raj Mangal Singh (PW 6) stated that he was one of the miscreants who committed the crime. Their testimony does not appear believable for several reasons. Chandra Bali Singh (PW 5) is the informant. He stated that one Jokhu, who belongs to his village, was also amongst the culprits. Their testimony does not appear believable for several reasons. Chandra Bali Singh (PW 5) is the informant. He stated that one Jokhu, who belongs to his village, was also amongst the culprits. His statement was not supported by Raj Mangal Singh (PW 6 ). He could not assign any satisfactory reason as to why he did not name Jokhu in the F. I. R. Jokhu was co- accused along with Babu Lal. The statement of Chandra Bali Singh was no believed so far as it related to Jokhu with the result that he has been acquitted. It shows that Chandra Bali Singh (PW 5) did not state truth about another accused. There is no evidence on record showing that Babu Lal belongs to the gang of Berra and Jodha who had direct motive to commit the crime. Chandra Bali Singh and Raj Mangal Singh did not try to connect Babu Lal sppellant with the aforesaid miscreants who were murdered after the incident in an encounter. No specific rule was assigned to Babu Lal appellant by Chandra Bali Singh (PW 5) and Raj Mangal Singh (PW 6 ). Since the occurrence took place according to the prosecution witnesses for about 45 minutes, the witnesses could easily state what role was placed by Babu Lal appellant at the time of the occurrence. Chandra Bali Singh (PW 5) stated that the police and P. A. C. arrived within a few minutes of the occurrence. He further stated in examination-in-chief that on their arrival fire of his Marha was extinguished. Raj Bali Singh (PW 6) stated that when he reached the fire of Marha had extinguished. It shows that Raj Mangal Singh (PW 6) did not reach while the miscreants were committing the crime The arrival of police soon after the occurrence goes to show that the F. I. R. was prepared after consultation with the police. Babu Lal appellant suggested that police was ill-disposed towards him and they got him implicated in criminal cases before the incident. He has filed certain documents in support of this contention. In view of these facts nomination of Babu Lal in the F. I. R. loses its signi ficance. Chandra Bali Singh (PW 5) stated that at the time of the incident the dacoits were indiscriminately firing, so no question of their recognition arose at that time. He has filed certain documents in support of this contention. In view of these facts nomination of Babu Lal in the F. I. R. loses its signi ficance. Chandra Bali Singh (PW 5) stated that at the time of the incident the dacoits were indiscriminately firing, so no question of their recognition arose at that time. This Statement indicates that he could not recognise Babu Lal amongst the miscreants and his name has been mentioned either at the instance of police or on mere suspicion. In the F. I. R. Chandra Bali Singh (PW 5) alleged that when the dacoits arrived and started firing he went inside the village and raised alarm In the deposition he denied it and stated that when the dacoits starred firing he rushed a few paces and concealed himself near the Baithka of Kedar. This Baithka has not been shown in the site plan. The witnesses said to be carrying torches have not been examined. The injured witnesses have also not been examined to support the statements of Chandra Bali Singh (PW 5) and Raj Mangal Singh (PW 6 ). In the Fard prepared about (sic) the Investigation Officer did not mention if they were taken from the Osara of Chaadra Bali Singh. The case of setting fire to Osara by the mis creants without causing any damage to any property appears doubtful because if the miscreants had come to commit murder they would not have set fire to the chhappar or Osara after commission of murderer persons as it would have given an opportunity to the witnesses to recognise them, Chandra Bali Singh (PW 5) and Raj Mangal Singh (PW 6) had been disbelieved about Pancham co-accused also. The place from where Raj Mangal Singh witnessed the occurrence has also not been made clearly shown in the site plan. His pre sence at the time of the incident has been made doubtful by his own testimony. It is, therefore, evident that the evidence led by the prosecution against Babu Lal appellant to prove his complicity is not worthy of reliance and he is also entitled to get the benefit of doubt in the case. 10. For the reasons given above the appeal is allowed. The conviction and sentences of appellant Babu Lal alias Khur Bhur and Pancham are in jail. They shall be set at liberty forthwith if not wanted in any other case. 10. For the reasons given above the appeal is allowed. The conviction and sentences of appellant Babu Lal alias Khur Bhur and Pancham are in jail. They shall be set at liberty forthwith if not wanted in any other case. Appeal allowed. .