JUDGMENT 1. - Three persons have been convicted and sentenced by the Additional Sessions Judge No. 2, Baran district Kota in Sessions trial No. 4/80 by his order dated Sept. 18, 1982. While deciding the case, one Mangtya was acquitted and two other persons Sanwaliya and Raj Kumar were found to be absconding. 2. The three persons who have been convicted have preferred this appeal. Their conviction and sentence is as under:- Balu : U/s 395 IPC 7 years R.I. and a fine of Rs. 1000/- in default of payment of fine one year's R.I. U/s 397 IPC 10 years' R.I. and a fine of Rs. 1000/- in default of payment of fine One year's R.I. Chatra & Baba : U/s 412 IPC Three years' R.I. and a fine of Rs. 500/- each in default of payment of fine 6 months' R.I. each. 3. The facts in brief are that in the night of May 30th, 1975, dacoity was committed in village Hanuwant Kheda, which falls within the police station Bhapcha. About 15-16 persons came armed with guns etc. and looted cash and silver ornaments from about a dozen houses and went away. The report of the incident was lodged by PW1, Banshi Ram at Police Station Bhapcha and subsequently the other inmates of the village from whose houses things were taken away supplied lists of the articles taken away from their houses. 4. In due course the accused persons were arrested and the appellants were made to face trial. A number of witnesses have stated that dacoits had come to their village and had taken away articles from them after giving beating and putting them in fear. 5. What is to be seen is that whether the present appellants were amongst those who had committed the dacoity. To this effect there was no evidence against the accused Chatra and Baba hence, they were acquitted for the offence under Sections 395 and 397 IPC and their conviction is only under Section 412 IPC. For holding that the commission of this offence has been proved, the evidence accepted by the learned Additional Sessions Judge is that a silver 'Dholiva' was recovered at the instance of Chatra while a silver 'Chhoga' was recovered at the instance of Baba. Both these articles were recovered from the Jungle from under a tree wherein they are said to have been buried about a feet deep. Both these articles were recovered from the Jungle from under a tree wherein they are said to have been buried about a feet deep. The recovery memos are Ex.P.17 and P. 19. The prosecution has not brought any witness in whose presence this recovery was made. It is contended by the learned counsel for the appellants that this recovery has been made from an open place which was not in the exclusive possession of the accused and secondly, that there is no evidence to prove that the recovery was made at their instance. In Trimbak v. The State of Madhya Pradesh ( AIR 1954 SC 39 ). it was held that the field from which the ornaments were recovered was an open one, and accessible to all and sundry; it is difficult to hold positively that the accused was in possession of the articles. It was further held that for proving a person guilty under Section 411 of I.P.C. it has to be shown that the stolen property was in possession of the accused and that some person other than the accused had possession of the property before the accused had got possession and that the accused had knowledge that the property was stolen property. 6. The recovery at the instance of both the accused is said to have been made on July 17th, 1975. This simultaneous recovery also raises a further suspicion. On the basis of recovery from under a tree in the Jungle when it cannot be said that the place was in exclusive possession of the accused their conviction on the basis of such recovery cannot be sustained. 7. The accused Balu has been convicted under Section 397 IPC. He has been identified as one amongst the dacoits at the time of commission of dacoity. First of all the learned counsel for the appellants has contended that unless it is shown that this accused used a deadly weapon he cannot be convicted for the offence under Section 397 IPC. In Ratan Lal & Others v. The State of Rajasthan (1989) Cr.L.R. (Raj.) 328) , it has been held that the prosecution has to prove that a particular person was armed with a deadly weapon and he used the same in the commission of robbery. As there was no evidence to this effect, the conviction under Section 397 IPC was set aside. As there was no evidence to this effect, the conviction under Section 397 IPC was set aside. In Shri Phool Kumar v. Delhi Administration (1975 SCC (Cri) 336) , the meaning of terms of "offender" and "user" as used in Section 397 IPC was considered and it was held that the term "offender" is confined to the offender who uses any deadly weapon. It was further said that the use of a deadly weapon by the offender at the same time cannot attract Section 397 IPC for the imposition of the minimum punishment on another offender who has not used any deadly weapon. In view of these decisions, it is to be seen whether there is any evidence to show that this appellant namely Bala @ Balu used a deadly weapon at the time of the commission of the offence. It is a matter of regret that there is no such evidence on record on the basis of which it could be said that Balu used a deadly weapon. No doubt some persons were injured in the occurrence but then unless there was proof to this effect that it was the appellant who caused injuries at the time of the dacoity, he cannot be held guilty for the offence under Section 397 IPC. 8. The next question which arises is that whether there is any evidence on record to hold accused Bala @ Balu guilty under Section 395 IPC. The only evidence in this connection is the identification of this accused by three persons. This accused was arrested on June 8th, 1975. The identification parade was held only on October 8th, 1975 which means after a clear four months. Even at the time of identification it had been brought to the notice of the Magistrate that the accused had been shown to the witnesses. 9. In Jangsingh v. The State of Rajasthan ( 1984 RLR 19 : 1984 Cr.L.R. (Raj.) 196) , the test identification of one of the accused was arranged nearly after one month of his arrest During this period he would have been out for remand in the court and also to other places. This delay of one month had not been explained and there was no corroborative evidence to explain his participation in the commission of the dacoity. In the circumstances, he was acquitted. This delay of one month had not been explained and there was no corroborative evidence to explain his participation in the commission of the dacoity. In the circumstances, he was acquitted. Applying the principles of this case in the present case, it may be said that in absence of explanation about the delay in getting the accused identified in a line, the identification parade four months after the arrest does not inspire confidence. Hence in absence of proper identification of this accused, he cannot be convicted for the offence under Section 395 IPC also. 10. In view of the aforesaid, the conviction of the three appellants is set aside. The appeal is accepted and they are acquitted of the offences under Sections 412, 395 and 397 IPC. They are on bail. The bail bonds are discharged. They need not surrender.Appeal Accepted. *******