JUDGMENT Mr. B.P. Singh, J. - This is an appeal against the judgment and order dated 31st March, 1979 passed by Sri M.N. Kulshrestha, III Additional Sessions Judge, Budaun, in S.T. No. 397 of 1975 (State v. Chhotey), S.T. No. 187 of 1976 (State v. Ram Niwas and Turshan Pal) and S.T. No. 433 of 1976 (State v. Satish) under Section 396 Indian Penal Code, P.S. Ujhani, District Budaun. 2. The case of the prosecution was as follows :- 3. On the night between 7/8th of April, 1975, Intezar Husain (P.W.2), Jabbar Husain (P.W.3) Iqtedar Husain, Iqtedarunnisa, Salma and Nishat Khatoon were sleeping inside their house situate in village Jeoraparval. The house was electrified and the electric bulbs were on in the courtyard, veranda, gate and the roof. At about 1.30 A.M. 6-7 dacoits entered the house and started looting the property. Intezar Husain and his father were keeping their respective gun on their cots. In fact Intezar Husain (P.W.2) was awakened on receiving Lathi blow which was administered by one of the dacoits. Intezar Husain (P.W.2) saw that one of the dacoits, who was covering his face with a Dhata, was grappling with his father, Iqtedar Husain. During the scuffle the Dhata became loose and Intezar Husain could see the face of the dacoit and that dacoit was none also but the accused Chhotey. During the course of dacoity the dacoits beat Intezar Husain (P.W.2), Jabbar Husain (P.W.3), Iqtedarunnisa and Salma with Lathis. As result of beating administered all these five persons bad become unconcious. During the course of dacoity one of the dacoits fired by his gun on Iqtedar Husain who died as a result thereof. During the course of dacoity some villagers including Govind (P.W.4) had assembled near the house of Intezar Husain. While making their escape, one of the dacoits fired upon the villagers, as a result of which Shiv Charan died. 4. Umar Ali (P.W.1) had awakened on hearing the gun shots. He came out of his house and saw that the dacoity was being committed in the house of Intezar Husain. He rushed to the Wimco Factory and from there telephoned the authorities in P.S. Ujhani. He came back to the place of occurrence and by that time the dacoits had gone away. After making enquiries from Salma, Ex. He came out of his house and saw that the dacoity was being committed in the house of Intezar Husain. He rushed to the Wimco Factory and from there telephoned the authorities in P.S. Ujhani. He came back to the place of occurrence and by that time the dacoits had gone away. After making enquiries from Salma, Ex. Ka-1 was prepared by him and was handed over to the I.O. on the same day. 5. Head Constable, Rama Shankar (P.W.5), who was posted in P.S. Ujhani in April, 1975 had scribed the F.I.R. on 8.4.1975 at 2.45 A.M. under Section 395 Indian Penal Code on the basis of telephonic message conveyed by Umar Ali Khan. The consequential G.D. entry, Ex. Ka.2, was made by him. 6. S.I. Mukhtar Husain Siddiqi (P.W.15), who was posted in P.S. Ujhani in April 1975, was present when this case was registered at the police station. He took over the investigation and proceeded to the scene of occurrence. By the time the I.O. reached the scene of occurrence the dacoits had gone away. Routine investigation followed. The dead bodies of Igtedar Husain and Shiv Charan were sent for postmortem examination after completing the inquest proceedings. The relevant recovery memos relating to the plain and blood stained earth, used cartridges, Tikkis, used Bidis etc. were prepared. Thereafter the injured were sent to the hospital for medical examination. The statements of Nanhoo, Rashid, Pachcho and others were also recorded. Thereafter the investigation was taken over by S.O. Rajvir Singh Tyagi. On 21.5.1975 the S.O. Rajvir Singh Tyagi (P.W.12) had recorded the statements of Intezar Husain, Jabbar Husain, Mst. Nishat Khatoon and Mst. Iqtedarunnisa. The involvement of Chhotey came to the knowledge of I.O. and efforts to apprehend him were made. Proceedings under Sections 82/83 Cr. P.C. were initiated against Chhotey as he was not available at his residence. 7. On 27.7.1975 the I.O. came to know about the involvement of accused Ram Niwas, Satish Chandra and Turshan Pal. Thereafter S.O. Rajvir Singh Tyagi was transferred. 8. Thereafter the investigation was taken over by S.I. B.B. Chaudhary, who submitted the charge-sheet (Ex. Ka-24 to Ex. Ka-28) after receiving the result of the test parades. 9. All the four accused persons pleaded not guilty and claimed to be tried. The three Sessions Trials were tried together as they arose out of the same occurrence. 10. 8. Thereafter the investigation was taken over by S.I. B.B. Chaudhary, who submitted the charge-sheet (Ex. Ka-24 to Ex. Ka-28) after receiving the result of the test parades. 9. All the four accused persons pleaded not guilty and claimed to be tried. The three Sessions Trials were tried together as they arose out of the same occurrence. 10. At the trial the prosecution examined 15 witnesses i.e. Umar Ali (P.W.1), Intezar Husain (P.W.2), Jabbar Husain (P.W.3), Hari (P.W.4), H.C. Ram Shankar (P.W.5), Constable Visheshwar Singh (P.W.6) Ramdin (P.W.7), Constable Ramesh Chandra (P.W.8), Constable Ram Niwas (P.W.9), Dr. M.C. Sharma (P.W.10), Dr. V.P. KuLshrestha (P.W.11), Inspector Rajvir Singh Tyagi (P.W.12), Sri N.N. Verma (P.W.3), Sri Balbir Singh (P.W.14), and Sri Mukhtar Husain Siddiqi (P.W.15). The accused did not lead any evidence in their defence. 11. Learned Sessions Judge acquitted Chhotey and Satish. He held that accused Ram Niwas and Turshan Pal were guilty of offence punishable under Section 396 Indian Penal Code. Consequently each one of these two accused was sentenced to undergo ten years R.I. 12. Aggrieved by the judgment and order of the Trial Court, Ram Niwas and Turshan Pal have come in appeal. 13. I have heard learned Counsel for the parties and have gone through the record of the case. It is not disputed that a dacoity was committed at the house of Intezar Husain (P.W.2) on the night of 7/8 April 1975. It is also not disputed that the house of Intezar Husain was electrified and during the course of dacoity two persons i.e. Iqtedar Husain and Shiv Charan had died due to the gun shot wounds which were inflicted by some of the dacoits. The only defence of the appellants is that they were not amongst the dacoits. It is further contended on their behalf that they were shown to the witnesses at the police station and it was for this reason that some of the witnesses succeeded in pointing out them in the test identification parade. 14. Before discussing the evidentiary value of the witnesses of fact who have identified these two appellants in the Trial Court as well as in the test identification parade and have claimed that they were among the dacoits, I am dealing with the evidence of other witnesses which is more or less of formal nature and has not been challenged before me. 15. 15. Umar Ali (P.W.I) has claimed that he had reached the house of Achchan Mian at about 1.30 A.M. on the night of which the dacoity was being committed at his house. He was awakened on hearing gun shot and before going to the house of Achchan Mian, he had telephoned to Police Station, Ujhani about the fact that armed dacoits had come to the village and were committing dacoity at the house of Achchan Mian. He had proved the list of looted articles Ext. ka-1 which was prepared by him after making enquiries from Salma and has insisted that this list Ex. Ka-1 was handed over to the Investigating Officer on the next day. 16. H.C. Ram Shanke (P.W.5) has corroborated the evidence of Umar Ali (P.W.1) regarding the telephonic message and has proved the G.D. entry Ext. Ka-2. He has also proved the G.D. entries Exts. Ka-4, Ka-5, Ka-6, Ka-7 and Ka-8. 17. Constable Ramdin (P.W.7) and Constable Ram Niwas (P.W.9) have stated that they were posted in Police Station Ujhani from December, 1975 to July, 1976 and on 19.12.1975 they arrested accused Ram Niwas near Ujhani Bus stand at about 2.30 p.m. They have also claimed that the accused Ram Niwas was made Baparda on the spot and was brought to the Police Station Baparda where he was admitted in the lock-up of Police Station Baparda at 3.00 P.M. the same day. Constable Ram Niwas P.W.9 has further stated that he was posted in Police Station Ujhani in December, 1975 had on 20.12.1975, he had taken the accused Ram Niwas Baparda from the lock-up of the Police Station and had admitted him in the District Jail, Budaun, Baparda on the same day. 18. Constable Ramesh Chandra (P.W.8), who was posted in P.S. Ujhani from January to July, 1976, has stated that he had arrested accused Turshan Pal on 8.1.1975 near the tube-well of Hari Shankar in Village Jeoraparwala and had made him Baparda on the spot. He had also stated that he has brought the accused Turshan Pal Baparda to Police Station Ujhani where he had admitted him in the lock-up of the Police Station Baparda at about 4.00 P.M. on the same day. 19. He had also stated that he has brought the accused Turshan Pal Baparda to Police Station Ujhani where he had admitted him in the lock-up of the Police Station Baparda at about 4.00 P.M. on the same day. 19. Constable Visheshwar Singh (P.W. 6) who was posted in Police Station Ujhani in January, 1976, has stated that on 9.1.1976, he had taken out the accused Turshan Pal from the lock-up of Police Station Ujhani and had brought him to Budaun where he was admitted in the District Jain on the same day. All these four witnesses have insisted that these accused were kept Baparda throughout the time they had remained in their custody. 20. Dr. M.C. Sharma (P.W. 10) had conducted the post-mortem examination upon the dead body of lqtedar Husain on 8.4.1975 at 3.45 p.m. while Dr. V.P. Kulshrestha (P.W. 11) had conducted the postmortem examination upon the dead body of Shiv Charan on 8.4.1975 at 8.45 p.m. They have also prosed the post-mortem reports. 21. Balbir Singh (P.W. 14), who was posted as S.D.M. Budaun, in the year 1976, has stated that on 27.2.1976 he had conducted the test identification parade of accused Turshan Pal and Ram Niwas in accordance with Rules after taking all the necessary precaution as provided under the Rules. He had also stated that the witnesses Intezer Husain and Jabbar Husain had identified both accused Turshan Pal and Ram Niwas. He had also proved the identification memo Ext. Ka-13. 22. S.I. Rajvir Singh Tyagi (P.W.12) and S.I. Mukhtar Husain Siddiqi (P.W.15) have deposed about the steps which were taken by them during the course of the investigation of this case. They have also proved the relevant papers which were prepared by them during the course of investigation. 23. I have gone through the evidence of these witnesses and I find no reason to disbelieve the same. These witnesses are public witnesses and have simply deposed about their acts which were performed by them in the routine discharge of their official duties and function. There is absolutely no occasion for these witnesses to depose falsely in the case. 24. I have gone through the evidence of these witnesses and I find no reason to disbelieve the same. These witnesses are public witnesses and have simply deposed about their acts which were performed by them in the routine discharge of their official duties and function. There is absolutely no occasion for these witnesses to depose falsely in the case. 24. Coming to the witnesses of fact, Intezar Husain (P.W.2) and Jabbar Husain (P.W.3) have stated that they had identified these accused Ram Niwas and Turshan Pal in the test identification parade and that they had seen them for the first time in their life among the dacoits in the electric light. 25. Hari (P.W.4) has stated that he had identified accused Turshan Pal in the identification parade and had seen him for the first time in the life among the dacoits on the night of the occurrence. All these three witnesses have insisted that they had not seen both these accused after the commission of the dacoity and before holding of the test identification parade. 26. Learned Counsel for the appellants has argued that the prosecution has failed to prove that both these accused were kept Baparda while they were detained at the Police Station. The above contention has force. The prosecution has failed to produced any witness who had remained on guard duty during the night these appellants were kept in the lock-up of the Police Station. This is a link which is missing in the evidence of the prosecution witnesses. Furthermore, it was also contended that Turshan Pal was arrested on 8.1.1976 but was put up for test identification parade on 27.2.1976 after about 48-days. It was also contended that although Ram Niwas was arrested on 19.12.1975, he was put up for test identification parade on 27.2.1976 i.e. after about 69 days. The argument of the learned Counsel for the appellants is that there was no explanation of this delay in the holding of the test identification parade and after such a long gap the evidence of identification becomes doubtful. I agree with both the contentions advanced by the learned Counsel for the appellants. 27. Under the circumstances, the appellants are entitled to benefit of doubt. 28. The appeal is allowed. The judgment and order of the Trial Court dated 31.3.1979 is set aside. The appellants are on bail. They need not surrender. I agree with both the contentions advanced by the learned Counsel for the appellants. 27. Under the circumstances, the appellants are entitled to benefit of doubt. 28. The appeal is allowed. The judgment and order of the Trial Court dated 31.3.1979 is set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and the sureties are discharged.