JUDGMENT G.K. Mathur, J. - This appeal is directed against the judgment and order dated 28th March, 1978 passed by Sri J.C. Gupta V Addl. Sessions Judge Etah in Session Trial No. 158 of 1977 whereby the appellants have been convicted for the offence punishable under Section 396 I.P.C. and each of them has been sentenced to undergo for life imprisonment. 2. The case of the prosecution, in brief, has been that in the night between 26th/27th February, 1976 about 12 unkown persons committed dacoity at the house of Ambika Prasad situate in village Kamraua, within the circle of police station Soron, district Etah and that during the course of dacoity, the bandits in order to take the key of the safe caused injuries to Ambika Prasad (P.W. 1), his wife Smt. Indira and Smt. Asharfi Devi (aunt of Ambika Prasad). It is alleged that Khyali Ram (P.W. 10) the brother of Ambika, Prasad, was hurt by fire arm short of the dacoits when he was escaping out of his house. It is alleged that at the alarm raised by Khyali Ram, several persons of the village came there and Aram Singh, Hira Lal and Mohan Lal fired shots from their ' licensed guns to scare away the dacoits but the dacoits fired about 2530 round of shot and one of the shot hit Narayan Lal and he died at the spot near the Neem tree. The pellets of the fire arm shot had also hit Mahendra, Nanhoo, Shedil Singh, Aram Singh and Ali Mohammad. It is alleged that the dacoits could not break open the lock of the safe and as such they carried it away to some distance but took to their heels leaving it behind because of the pressure of the people of the village. According to the prosecution a lantern was burning inside of Kotha of Ambika Prasad and that the dacoits were also flashing their torches and that sufficient light was created by the fire put to that ches of Ali Mohammad, Ram Singh etc. 3. Ambika Prasad lodged a written report of the incident in question at the police station Soron at 9.00 a.m. on 27th February, 1976. 3. Ambika Prasad lodged a written report of the incident in question at the police station Soron at 9.00 a.m. on 27th February, 1976. Sri Ram Prakash Gupta (P.W.8) the then StationOfficer of the Police Station Soron in whose presence of the first information report was lodged, took up the investigation of the case and after reaching the spot got prepared an inquest report of Narayan Lal by the S.I. Virendra Singh and sent the dead body under sealed cover and relevant papers for post mortem examination. He took in possession sample of burnt ashes, blood stained earth, sample of plain earth, cartridges and ticklies etc. He also took in possession the lantern and gave it in the supurdagi of Ambika Prasad. 4. Subsequent to his transfer Sri Sushil Kumar Singh S.I. (P.W. 6) took up the investigation of the case in his hand and claimed to have arrested Raghubir Singh and Banarasi on 26th April, 1976 as they were found in possession of illicit arms. They were made Baparda at the spot because, on their interrogation, the Sub Inspector came to know of their complicity in this crime also. Sri Sushil Kumar Singh claimed to have arrested at 4.00 a.m. on 27th April, 1976 five persons and out of them Sohan, Bid and Jabar Singh were made accused in this case. 5. All the accused persons were put up for test identification on 26th June, 1976 conducted by Sri S.C. Sharma (P.W. 9) the Executive Magistrate, Etah and thereafter a charge sheet was submitted against them. 6. The prosecution to prove its case in all examined ten witnesses and out of them P.W. 1 Ambika Prasad P.W. 2 Ali Mohammad, P.W. 3 Mohan Lal and P.W. 10. Khyali Ram are the eye witnesses and they claimed to have seen the dacoits. The injury report and the post mortem report have been admitted in evidence as their genuineness was admitted to the accused persons. 7. The accused persons pleaded not guilty and stated that they have been shown to the witnesses by the police. Amongst the accused persons Raghubir stated that the witnesses knew them from before. The accused persons did not give any evidence in their defence. 8. 7. The accused persons pleaded not guilty and stated that they have been shown to the witnesses by the police. Amongst the accused persons Raghubir stated that the witnesses knew them from before. The accused persons did not give any evidence in their defence. 8. The learned trial court found that case proved against the appellants Raghubir, Banarasi and Jabar Singh and convicted them as the appellant Raghubir was identified by Ambika Prasad, Mohan Lal and Khyali Ram, appellant Banarasi was identified by Ambika Prasad, Ali Mohammad, Mohan Lal and Khyali Ram and Jabar Singh appellant was identified by Ambika Prasad, Ali Mohammad, Mohan Lal and Khyali Ram in court as well as in the test identification parade; and sentenced them as mentioned in the opening of the judgment. The learned trial court, however, acquitted the coaccused Sohan Singh and Bir Singh. 9. Feeling dissatisfied with the judgment and order of the trial court, the appellants Raghubir, Banarasi and Jabar Singh have preferred this appeal. 10. Heard the learned counsel for the appellant and the Additional Government Advocate and perused the record. 11. Learned counsel for the appellants submitted that the appellants are the residents of village Navipur situate within the circle of police station Dandon, district Aligarh and that the village Kumraua situate within the circle of Police Station Soron, district Etah is quite close to it only at a distance of 31/2 Km. according to the prosecution witnesses and he further argued that admittedly a' weekly market is held in village Kumraua and, according to the appellants, the people of village Navipur go to sell their goods in the said market. He also submitted that the witnesses had no opportunity to see the faces of the dacoits in this case. Above all, the learned counsel for the appellants submitted that the conviction of the appellants cannot be sustained because the identification parade had been held after four months from the date of occurrence and after two months from the date of the arrest of the appellants. In support of this argument, the learned counsel for the appellant relied upon the case of Soni v. State of Uttar Pradesh, 1982 Volume 111 S.C.C. Hari Nath Chhabi Nath and Raj Nath v. The State of Uttar Pradesh, AIR 1968 (S.C. p. 345). 12. In support of this argument, the learned counsel for the appellant relied upon the case of Soni v. State of Uttar Pradesh, 1982 Volume 111 S.C.C. Hari Nath Chhabi Nath and Raj Nath v. The State of Uttar Pradesh, AIR 1968 (S.C. p. 345). 12. Amongst the appellants only Raghubir stated in his statement recorded under Section 313 of the Code of Criminal Procedure that the witnesses knew him from before. The other appellants, namely, Banarasi and Jabar Singh did not claim that the witnesses knew them from before. The appellants could not substantiate by any evidence that prosecution witnesses knew the appellants from before, in the circumstances it cannot be accepted that they knew the appellants from before. The learned trial court has also rightly ruled out the possibility of showing the appellants to the witnesses by the police after their arrest. 13. The P.W. 1 Ambika Prasad remained inside the house during the course of dacoity and the dacoits, according to him, threshed him to obtain the key of the safe. It is in evidence that lantern was burning inside the house and that the dacoits were also flashing their torches. The statement of Ambika Prasad that he saw the face of the dacoits, therefore, cannot be ignored. 14. Ali Mohammad and Mohan Lal have stated that they have seen the dacoits during the course of dacoity from the distance of about 15 paces in the light of the fire of thatches from outside. Ali Mohammad claimed to have come from the Gher through the lane upto the house of Ram Singh and remained standing there for about twenty minutes during the course of dacoity. According to him when he reached there the thatch of Ram Singh had already been burnt to ashes but the thatch of the his house was burning. P.W. 3 Mohan Lal stated that he saw the dacoits from the door of the house of Ali Mohammad. According to him he was at a distance of 50 paces from the dacoits. However, on the court question, he gave certain distance which was found about 10 or 12 paces only from which distance he saw the dacoits. P.W. 3 Mohan Lal stated that he saw the dacoits from the door of the house of Ali Mohammad. According to him he was at a distance of 50 paces from the dacoits. However, on the court question, he gave certain distance which was found about 10 or 12 paces only from which distance he saw the dacoits. Khyali Ram (P.W. 10) has stated that when his father Nsrain Lal raceived the gunshot injury near the Neem tree, he went away by the side of the house of Doongar Lal and remained there till the departure of the dacoits. 15. From the above discussed evidence it is somewhat doubtful that Ali Mohammad, Mohan Lal and Khyali Ram might have been able to notice the features of the dacoits. 16. In this case, admittedly, the identification parade had been held after two months from the date of the arrest of the appellants and after four months from the date of the occurrence in question. In the case of Soni v. State of U.P. (supra), the Hon'ble Supreme Court has held that the delay of 42 days in holding the identification parade throws a doubt on the genuneness thereof. 17. The learned Additional Government Advocate submitted that the validity of the identification parade cannot be challenged on the ground of undue delay in holding i it, because the I Magistrate who held the parade and the police officer who conducted I the investigation, have not been crossexamined in that behalf. In support of this argument he relied upon the case of Bharat Singh v. State of U.P. AlR 1972S.C. page 2478.. It is true that no question has been put in this regard in the crossexamination of the aforesaid witnesses. In this case the witnesses did not give any description of the dacoits either in the first information report or in their statement during the investigation. The witnesses also did not specify the specific acts in the commission of the crime to any of the dacoits. In this view of the matter .the omission to crossexamination the witnesses on the question of delay looses significance. 18. For the reasons given above, and keeping in view of the entire evidence on record, we come to the conclusion that it is not safe to maintain the conviction of the appellants. The appeal deserves to be allowed. 19. The appeal is allowed. 18. For the reasons given above, and keeping in view of the entire evidence on record, we come to the conclusion that it is not safe to maintain the conviction of the appellants. The appeal deserves to be allowed. 19. The appeal is allowed. The appellants are not found guilty of the offence punishable under Section 396 I.P.C. for which they have been convicted and sentenced. Their r conviction and sentence are set aside. They are in jail. They be set at liberty if not wanted in any other case.