JUDGMENT Palok Basu 1. Though the three appeals appear to have a bulky record these can be decided by a short judgment dealing with the vital points argued by the learned counsel for the appellants. Babu Ram Misra has filed Criminal Appeal No. 270 of 1987, Vinod has filed Criminal Appeal No. 325 of 1987 (he has also sent an appeal from Jail numbered as Criminal Appeal No. 593 of 1988) and Sharif Ahmad has filed Criminal Appeal No. 361 of 1987 against the judgment and order of the III Additional Sessions Judge, Bahraich, dated 21-3-1987, in Sessions Trial No. 174 of 1986 convicting and sentencing all the appellants under sections 395/397 IPC to seven years' rigorous imprisonment. 2. A dacoity is said to have been committed at the house of one Chhotey Lal in the intervening night of 19/20th October, 1985. Chhotey Lal lodged an FIR. at Police Station Motipur, district Bahraich in the presence of the Station Officer. It was lodged at 9.15 A.M. on 20-10-1985. In order to prove its case the prosecution examined several eye-witnesses. The appellants have denied their participation in the crime and have attributed their false implication due to enmity. Babu Ram and Sharif Ahmad are residents of an adjoining district Lakhimpur-Kheri. Sharif Ahmad had proved the two telegrams, said to have been sent by his relatives, suggesting that they were arrested on 29th October, 1985, and not on 7-11-1985 as suggested by Ganesh Ram Sharma, the aforesaid Station Officer. It may be remembered that the prosecution's consistent case is that Vinod, Sharif Ahmad and Babu Ram appellants were arrested by Ganesh Ram Sharma on 7-11-1985. To complete the chronology, the appellants were put up for identification against whom there is no other evidence. The identification parade was held on 9-1-1986 which was attended by seven witnesses, namely, Chhotey Lal, Jagsen, Girdhari, Nankanna, Hardwari, Lalji and Gendey Lal. Out of these seven, six witnesses identified all the appellants but Girdhari failed to identify Babu Ram, Gendey Lal failed to identify Vinod whereas Hardwari failed to pick up Sharif Ahmad. 3. The learned counsel for the appellants Sarvasri Vinod Kumar Singh, U. K. Shahi. P. K. Punhari and Sirdhar Bajpai have criticised the evidence of identification on two grounds. Firstly, the theory of arrest on 7-11-1985 as propounded by Ganesh Ram Sharma, I O., must be rejected as utter lie. 3. The learned counsel for the appellants Sarvasri Vinod Kumar Singh, U. K. Shahi. P. K. Punhari and Sirdhar Bajpai have criticised the evidence of identification on two grounds. Firstly, the theory of arrest on 7-11-1985 as propounded by Ganesh Ram Sharma, I O., must be rejected as utter lie. Secondly, external aid has, in fact, been accorded to the prosecution witnesses so as to make these 'too-good' results available. Six out of seven witnesses- picking up the alleged dacoits who were allegedly available for momentary glimpse in the light of torch (While Dhibri having not been available to the witnesses for identification according to the finding recorded by the Trial Judge) would not have been so sufficient as to enable the prosecution witnesses to retain the impressions of the accused in their minds after about four months of the incident. 4. Sri Jyotindra Misra, learned A.G.A. appearing for the State has placed reliance on the authority reported in the case of Thanedar Singh v. State of U. P., 1981 ACC. (SOC 3 item no. 5). He further argued that the trial court was right in placing reliance upon the testimony of Ganesh Ram Sharma, the Arresting Officer and, therefore, the identification evidence furnished by the alleged witnesses should be believed. Before adverting to this point, another important fact on record requires mention. Chhotey Lal, the alleged person in whose house the dacoity was committed, named two accused specifically in his deposition and they were Ram Naresh Pandit and Baithoo both were allegedly residents of the village of the informant. The Investigating Officer filed a final report against those two persons. No complaint was filed by Chhotey Lal nor did he make any application before the Trial Judge for invoking the powers under section 319 CrPC. The result, therefore, is that Chhotey Lal to the extent of having named Ram Naresh Pandit and Baithoo as dacoits committing loot at his house, stands discredited by the prosecution itself. It is not denied that the two telegrams have been duly proved on record having been sent by the relatives of Sharif Ahmad, addressed to the S.S.P., Lakhimpur-Kheri. It has been alleged therein that Sharif Ahmad was arrested from his residence and that his where abouts are not known. This has happened only about 5 or 6 days before the arrest has been allegedly shown by the prosecution. It has been alleged therein that Sharif Ahmad was arrested from his residence and that his where abouts are not known. This has happened only about 5 or 6 days before the arrest has been allegedly shown by the prosecution. The close proximity of the telegrams with the date of alleged arrest shown by Ganesh Ram Sharma, the Investigating Officer, leaves no room for doubt that the defence version of arrest of Sharif Ahmad in connection with this case is highly probable. 5. In this connection the other important factor to be noted is that Ganesh Ram Sharma, the Investigating Officer, was himself the Station Officer where the FIR was lodged allegedly in his presence. He assumes the role of Arresting Officer also and admittedly made a combined arrest of the three appellants from the house of Vinod appellant on 7-11-1985 around 4 A.M. The relevant entry in the General Diary of the police station concerned has been made at 3-30 P.M. the same day. The learned Trial Judge had placed implict reliance on this general diary entry in order to corroborate the statement of Ganesh Ram Sharma. The learned counsel for the appellants have vehemently argued that scant respect has been shown to the procedure laid down for effecting arrest and not even a memo was prepared by the Investigating/Arresting Officer relating to the alleged arrest of the three appellants. It is stressed repeatedly that not only that no public witness has been examined in order to prove the alleged arrest, even a copy of memo of arrest and the reasons for the same was not handed over to the appellants and, therefore, the mandatory provisions contained to this effect in the CrPC as also the right of citizens guaranteed under the Constitution of India has been completely flouted. It is true that there is no document whatsoever on the record to show how and in what manner, in whose presence and under what circumstances the arrest of appellants was said to have been effected by Ganesh Ram Sharma, the Investigating Officer. There is no entry in the General Diary nor any paper to that effect has been proved as to what was the source of information with the Investigating Officer enabling him to set for searching the appellants at the residence of Vinod. There is no entry in the General Diary nor any paper to that effect has been proved as to what was the source of information with the Investigating Officer enabling him to set for searching the appellants at the residence of Vinod. There is just a bald statement of Ganesh Ram Sharma that he had arrested the three appellants on 7-11-1985 which this Court has to believe if the conviction of the appellants is to be sustained. 6. Section 41 CrPC read with section 51 CrPC and 56 CrPC indicate that the Legislature has provided enough safeguards too see that the police does not unnecessarily arrest a man nor try to suggest a date which suits them regarding their arrest. Preparation of a memo under the circumstances of the present case was more than compulsory if the Arresting Officer wants the court to believe that he had some information or reason to arrest the appellants on 7-11-1985. No memo having been prepared about the arrest or search or having taken the appellants to the police station, it appears extremely doubtful as to whether the appellants were, in fact, arrested on 7-11-85 at all. It is, therefore, unsafe to place reliance upon the testimony provided through test identification parade to convict the appellants as external aid is not ruled out. Simultaneously the fact cannot be lost sight of that six out of seven persons identifying each of the appellants after about 5 months of the incident after having alleged momentary glimpse of the dacoits in the midnight, would not be a safe basis to rely upon or convict them as dacoits participating in the incident. It is certainly 'too-good' to be believed. Therefore, the identification evidence in this case does not inspire confidence. Chhotey Lal, the victim, came out with a case of having named two persons specifically. That case of his has been found untrue by the prosecution itself. Those two persons have not been prosecuted at all and instead, the three present appellants have been challenged. In this connection another relevant fact to be noted is that Vinod resides in village Amritpur which is adjacent to the village of the incident. His case is that he is married to the daughter of one Jagdish of the village of the incident. In this connection another relevant fact to be noted is that Vinod resides in village Amritpur which is adjacent to the village of the incident. His case is that he is married to the daughter of one Jagdish of the village of the incident. The criticism of the learned Trial Judge is that appellant Vinod has not examined the said Jagdish in his defence. He has lost sight of the fact that PW 1 Chhotey Lal has admitted that there is one Jagdish in his village who has a daughter whose marriage has already been solemnised. It is true that he does not name Vinod as the son-in-law of Jagdish but if he had so, where would his case stand ? This fact has been ignored by the Trial Judge. 7. On the facts and circumstances stated above, it cannot be said that the prosecution has successfully proved the charge under sections 395/397 IPC against the appellants and their conviction and sentences cannot be sustained. 8. All the appaels are allowed. The conviction of the appellants Babu Ram Misra, Vinod and Sharif Ahamd as recorded by the Trial Judge under sections 395/397 IPC and the sentences of seven years' R.I. are set aside. Though the record shows that the order granted them bail was passed while admitting the appeals, the jail appeal (Government Appeal) has put this Court in doubt as to whether the appellants have availed of that order or not. In case they are in custody they will be relased forthwith unless wanted in connection with some other case. This judgment will govern the other connected appeals also. Appeal allowed.