S. K. DUBEY, J. ( 1 ) EIGHT appellants have filed this appeal against the judgment of conviction and sentence recorded in Session Trial No. 32 of 1977 on 29-10-1977 by Second Additional Sessions Judge, Morena. ( 2 ) DURING the pendency of the appeal, appellants Triloksingh, Hariram Rahman, Hakimsingh and Majju alias Majbootsingh have died; therefore, their appeal stands abated, and, the appeal of only three appellants namely, Khalaksingh, Rameshwar and Mataprasad, survives. ( 3 ) THE brief facts leading to this appeal are thus: In all, nine accused persons were tried for offences under Ss. 395, 396 and 397 read with S. 149, IPC, for committing a dacoity with murder of one Kalia, the husband of Hasina (PW 16), in the intervening night of 30th and 31st Oct. 1976, in village Alapur, Tahsil Jaura, District Morena. Accused Majju alias Majbootsingh and Mataprasad were also tried under Ss. 25 and 27 of the Arms Act for possessing unlicenced 12 bore Kattas which were used at the time of committing dacoity, as a consequence of that Kalla died. The acquitted accused Rajeshkumar was charged under Ss. 395, 396 read with S. 109, I. P. C. ( 4 ) A report (Ext. P. 3) by Hafiz Gulam (PW 2) was lodged at Police Station Jaura at about 0. 45 a. m. on 31-10- 1976 that when goats were being loaded in the truck, he heard the firing; on reaching near the mosque, he heard the cries of Kalla for help "miscreants have entered the house and are looting the property". On this report, Mangalsingh PW 32), the investigating officer, reached the house of Kalla, where Hasina (PW 16) narrated the incident, as to how the accused persons entered into the house, killed her husband and looted silver and gold ornaments, two white shirts, and Rs. 14,000/- cash of which Ext. P-4, a list, was prepared by Santoshilal (PW 26), handed over at the spot to Mangalsingh. Five mis-fired rounds and four empty cartridges were seized from the spot vide seizure memo (Ext. P-52 ). None of the assailants was arrested at the spot. The autopsy was performed by Dr. Ragnekar (PW 18), post-mortem report is Ext. P. 29. ( 5 ) ACCUSED Mataprasad was arrested on 31-10-1976 at 6 a. m. in village Bilgaon, which is a kilometer away from the place of occurrence, vide arrest memo (Ext. P-52 ). None of the assailants was arrested at the spot. The autopsy was performed by Dr. Ragnekar (PW 18), post-mortem report is Ext. P. 29. ( 5 ) ACCUSED Mataprasad was arrested on 31-10-1976 at 6 a. m. in village Bilgaon, which is a kilometer away from the place of occurrence, vide arrest memo (Ext. P. 7) from whom, while he was standing near his jeep-car, one 12 Katta (Art. P) and two live cartridges were seized vide seizure memo Ex. P-8 in presence of witnesses Ahmed Khan (PW 8) and Shakur, who was not examined. Khalak- singh and Rameshwar were received from Jhansi Jail on 7-1-1977. Formal arrest was shown vide memo (Ext. P. 60) D/-27-1-1977 at 13. 30 hrs. Accused Mataprasad and Majbootsingh made confession vide Exts. P. 1 and P. 2 which was recorded under S. 164 Cr. P. C. on 10-11-1976 and 11-11-1976 respectively by D. M. Kulkarni (PW 1), Chief Judicial Magistrate, Morena. In pursuance of information given by accused Khalaksingh under S. 27 of the Evidence Act vide Ext. P-31 on 3-2-1977 a Romer Wrist Watch (Art. 1) was discovered at his instance vide Ext. P-37 from his house in village Parwai, District Jhansi. Accused Rameshwar gave information on the same day vide Ext. P-34 in pursuance of which a white shirt (Art. B) was recovered from an earthen pot from his house in village Parwal, District Jhansi vide Ext. P-38. Witnesses to these two recoveries were Kedarsingh (PW 23) and Vasudeo (PW 25 ). Test Indentification Parade (for brevity 'tip') vide Ex. P-5 was held of the two accused Mataprasad and Majbootsingh by L. N. Kulshrestha (PW 6) on 27-12-1976, in which PW 4 Akbar identified Mataprasad, Kalla PW 3 did not identify any body. T. I. P. was also held in respect of Rameshwar and Khalaksingh, but the TIP memo prepared was not produced at the trial. In TIP of Articles, held on 7-2-1977 vide Ext. P-6 by Vinod Singh (PW 7), the shirt, Art. B, was identified by Kalia (PW 3), Hasina (PW 16) and Rustom Khan (PW 27); the wrist watch (Art. 1) was identified by Hasina (PW 16 ). In TIP of Articles, held on 7-2-1977 vide Ext. P-6 by Vinod Singh (PW 7), the shirt, Art. B, was identified by Kalia (PW 3), Hasina (PW 16) and Rustom Khan (PW 27); the wrist watch (Art. 1) was identified by Hasina (PW 16 ). ( 6 ) THE trial Court, after appreciation of evidence in para 68 finds that accused Mataprasad, Majbootsingh, Triloksingh, Khalaksingh and Hakimsingh seem to be present in the house of Kalia at the time of dacoity, regarding other accused presence was not found to be established. The accused Rajesh kumar was acquitted of the charges under Ss. 396 and 397 read with S. 109. Accused Triloksingh, Khalaksingh, Rameshwar, Rahman and Hakimsingh were convicted under Ss. 395, 396 read with S. 149 but were acquitted of the charge under S. 397. Accused Mataprasad and Majbootsingh were convicted under Ss. 395, 396/149 and 397 IPC and also under Ss. 25 and 27 of the Arms Act. Of the present appellants, Rameshwar and Khalaksingh were sentenced to 10 years rigorous imprisonment under S. 396 alone, no separate sentence was recorded under S. 395, whereas accused Mataprasad was convicted under Ss. 395, 396/149 and 397, IPC, and was sentenced to 10 years' R. I. under S. 396, and in his case too no separate sentences for other offences. Accused Mataprasad and Majbootsingh were also convicted under Ss. 25 and 27 Arms Act and each of them was sentenced to six months rigorous imprisonment and, a fine of Rs. 1,000/- in default, four months' further R. I. each. ( 7 ) SHRI R. K. Sharma, counsel for appellant Rameshwar; Shri A. B. Tripathi, counsel for Khalaksingh and Mataprasad, and Shri C. S. Dixit, Deputy Govt. Advocate for State, were beard at length. The record of the trial Court perused. ( 8 ) COUNSEL for the appellants contended that the TIP of accused persons was held after 57 days of their arrest, the, delay having not been explained the evidence of TIP has no value. TIP was further criticised because no precautions were taken to keep the accused persons 'ba Parda'. It was submitted that though the witnesses have said during trial that there was light at the place of occurrence, neither in the first information report nor in the statements recorded under S. 161, Cr. TIP was further criticised because no precautions were taken to keep the accused persons 'ba Parda'. It was submitted that though the witnesses have said during trial that there was light at the place of occurrence, neither in the first information report nor in the statements recorded under S. 161, Cr. P. C. , no witness has said about the prevailing light at the place of occurrence and proximity to the assailants had a clear vision of the action of each one of the accused persons in order that their features could get impressed in their mind to enable them to recollect the same and identify even after a long time. Besides, in TIP, chits were affixed on the Paces of the accused persons and those who were mixed up, only one witness, PW 4 Akbar identified the assailants. Therefore, Shri Sharma placing reliance on a decision of the Apex Court in Bollavaram Pedda Narsi Reddy v. State of Andhra Pradesh, AIR 1991 SC 1468 and a Division Bench decision of this Court in case of Ranchhod Singh v. State of M. P. , 1983 JLJ 186 , contended that unless the fact of the source of light finds place in the first information report or in the statements of the witnesses recorded during investigation, the improvement by the witness that there was electric light in the courtyard where the occurrence took place, and he saw the assailant, cannot be considered, and it would be hazardous to draw the inference that the appellants were the real assailants. ( 9 ) IN my opinion, without dealing the reliabilty of TIP on other questions, the TIP can be ignored from consideration as it was not held at the earliest opportunity, and for the delay no explanation was put forward by the prosecution. Therefore, the appellants are entitled to get the benefit of doubt. The law in respect of TIP is settled. The purpose of TIP is to test the statement of the witness made in the court, which constitutes substantive evidence, it being the safe rule that the sworn testimony of the witness in court as to the identify of the accused requries corroboration in the form of an earlier identification proceeding. The law in respect of TIP is settled. The purpose of TIP is to test the statement of the witness made in the court, which constitutes substantive evidence, it being the safe rule that the sworn testimony of the witness in court as to the identify of the accused requries corroboration in the form of an earlier identification proceeding. Such parades, which belong to the investigation stage, serve to provide the authority with material to assure themselves if the investigation is proceeding on right lines and therefore it is desirable to hold them at the earliest opportunity. A further reason is that an early opportunity to identify also tends to minimise the chances of the memory of the identifying witnesses fading away due to long lapse of time. Identification of the accused by a witness soon after the former's arrest is of a vital importance in the interest of justice and fair play, both to the accused and the prosecution. ( 10 ) REGARDING evidence of recovery, counsel took this Court to the statements of Kedarsingh (PW.-23) and Vasudeoprasad (PW 25 ). These witnesses have stated that they belong to village Tulsipura which fails within the jurisdiction of Police Station Deogarh, which is 36 miles away from Police Station Jaura. These witnesses came in a bus for some work and got down at bus stand of Jaura. From there, they were called by the investigating officer who was well known to the witnesses, as admitted by PW 23 in para 2 and by PW 25 in paras 2 and 12 (though the investigating officer has denied his acquaintance with these witnesses ). It is surprising that these witnesses were taken from Jaura Police Station to village Parwai (District Jhansi), which is about 150 km. away from P. S. Jaura, therefore, it was contended that the witnesses were stock witnesses whom the police have employed to act as Panch witnesses, who were specifically chosen to support the prosecution case. It is surprising that these witnesses were taken from Jaura Police Station to village Parwai (District Jhansi), which is about 150 km. away from P. S. Jaura, therefore, it was contended that the witnesses were stock witnesses whom the police have employed to act as Panch witnesses, who were specifically chosen to support the prosecution case. To meet this, Shri Dixit has placed reliance on two decisions of the apex Court in Himachal Pradesh Administration v. Om Prakash, 1972 Cri LJ 606 and Khujji alias Surendra Tiwari v. State of Madhya Pradesh, 1991 Cri LJ 2653: (AIR 1991 SC 185) wherein it is said that it could not be laid down as a matter of law and practice that where recoveries have been effected from different places on the information furnished by the accused, different sets of persons should be called into witnesses them. There was no injunction in law against the same set of witnesses being present at the successive enquiries if nothing could be urged against them. ( 11 ) TRUE, it is not necessary to have different sets of persons to witness the discoveries but it is evident from the cross-examination of these two witnesses that they were chosen by the investigating officer; they were not even belonging to Jaura, were taken to village Parwai (Dist. Jhansi) for making them Panch witnesses to recoveries. Further, PW 23 Kedarsingh in his examination-in-chief has stated that he is not aware as to what information was given by which accused and which articles were recovered, but when the Panchahamas and the recovery memos were read over to him, he admitted the documents and said about recoveries. In para 15 witness said that when he came back from village Parwai to Police Station Jaura, his signatures were obtained on 10-12 papers, which when shown to the witness in the court, admitted to he the same papers over which he signed at the police station, but the witness is not declared hostile. Therefore, the prosecution was bound by the testimony of this witness. ( 12 ) IN such circumstances, as the accused persons have disowned the recoveries, respectable persons of the locality not being joined as witnesses, the signatures were obtained at the police station on the papers after the witnesses came back covering a long distance. Therefore, the prosecution was bound by the testimony of this witness. ( 12 ) IN such circumstances, as the accused persons have disowned the recoveries, respectable persons of the locality not being joined as witnesses, the signatures were obtained at the police station on the papers after the witnesses came back covering a long distance. Such Panchanamas or recovery memos, do not inspire confidence, and create a suspicion about the preparation of the documents at the spot, because of non-examination of respectable witnesses from the locality. ( 13 ) EVEN if the evidence of recovery is held to be admissible, such discovery of articles from different accused persons cannot be placed reliance to sustain the conviction. From accused Rameshwar a white shirt of common use was recovered from an earthen pot in his house. Hasina (PW 16), the wife of the deceased, has said that she came to know about the recovery of the articles at the police station after 15 days of the occurrence. The TIP (Ext. P-6) was held for identifying the shirt (Art. B ). From Ext. P-6 it is evident that white shirts were not mixed up with Art. B, as PW 3 Kalla has stated in his statement that the shirts mixed up were of different colours and he took out the white shirt. Hasina (PW 16) has stated that the deceased husband put on that shirt only for half an hour and, therefore, she identified the shirt. To support the fact that the shirt belonged to the deceased, tailor Rustam Khan (PW 27) was examined, who was stated that he could identify the shirt only because of the label of his tailoring mart on the shirt. PW 7 Vinod Singh who held he TIP of the articles, in para 4 stated that on the label of the shirt a chit was affixed, but on other shirts which were mixed up, no chits were affixed. In para 6 this witness further stated that the articles which were to be identified, ink marks were put on them by him. In the circumstances, the TIP of the articles wherein same type of articles were not mixed up, and ink marks made in ink, put on such identification, cannot be relied, which belief the evidence in court. In para 6 this witness further stated that the articles which were to be identified, ink marks were put on them by him. In the circumstances, the TIP of the articles wherein same type of articles were not mixed up, and ink marks made in ink, put on such identification, cannot be relied, which belief the evidence in court. ( 14 ) IT is also significant that PW 7 Vinod singh has admitted that the result of identification was noted by him on a rough piece of paper and from that paper the identification memo was prepared. This rough piece of paper was not produced in Court. That being the original having not been produced, looking to the circumstances stated above, the evidence of such identification can also not be accepted to sustain the conviction. See Sadia's case (supra ). Even if the recovery of Art. B, the shirt is relied upon, the appellant Rameshwar cannot be connected with the offences charged. At the most, he can be said to be the receiver of stolen property, as Rameshwar was arrested after a period of three months of the occurrence; the shirt was of common use and there is no evidence that accused Rameshwar knew that the shirt was a stolen property, and the fact that there was no charge under S. 411 I. P. C. , the occurrence took place about 15 years back, Rameshwar also cannot be convicted for the said offence in the absence of charge. For that see a recent decision of the apex Court in Kedarnath etc. v. State of M. F. , 1991 Cri LJ 989: (AIR 1981 SC 1224 ). ( 15 ) THE learned Deputy Govt. Advocate submitted that besides evidence of discovery there is other evidence of confession by the accused Majbootsingh, while making the confession (Ext. P-2) under S. 164, Cr. v. State of M. F. , 1991 Cri LJ 989: (AIR 1981 SC 1224 ). ( 15 ) THE learned Deputy Govt. Advocate submitted that besides evidence of discovery there is other evidence of confession by the accused Majbootsingh, while making the confession (Ext. P-2) under S. 164, Cr. P. C. , implicated co-accused Rameshwar as one of the participants in the crime, who committed dacoity and was involved in the offences, that confession cannot be relied upon for convicting accused Rameshwar for two reasons; (I) there is no independent evidence to connect the accused Rameshwar with the crime, and (ii) the confession so made was exculpatory, it does not implicate the maker to the same extent as the other accused person against whom the confession is sought to be used as Majbootsingh has confessed that he was standing outside. Such type of confession by the co-accused cannot be used against another co-accused as he does not incriminate himself suggesting himself to be a simple spectator, cannot give rise to a conclusion of 'guilt beyond reasonable doubt, and cannot be trusted. ( 16 ) COMING to the evidence of TIP of recovery of Article 1, a wrist watch, from accused Khalaksingh, Shri Tripathi, learned counsel submitted that the TIP cannot be relied upon, as it suffers from same infirmities as pointed out in relation to shirt. The evidence of recovery can also not be relied upon, as besides non-examination of independent panch witnesses from the locality, the wrist watch was not recovered at the instance of the accused. It has come in the prosecution evidence that the wrist watch was handed over to the investigating officer by Khalaksingh's brother Badri. Therefore, it was rightly contended that there was no exclusive possession, as the recovery was from a house not in the exclusive possession of the accused, who did not point out the specific place where the watch was kept, but on the mere asking, the accused's brother Badri brought the watch and handed over it to investigating officer, in such circumstances, such a recovery cannot be attributed to the accused. See a single Bench decision of this Court in Ramnath Lodhi v. State of M. P. , 1982 MPVM 524. See a single Bench decision of this Court in Ramnath Lodhi v. State of M. P. , 1982 MPVM 524. ( 17 ) THERE remains, now no evidence except the confession of co-accused Majbootsingh incriminating the accused Khalaksingh, but as discussed earlier, such confession can not be made the basis to sustain the conviction of accused Khalaksingh also. Therefore, the conviction of appellant Khalaksingh, in the opinion of this Court, can also not be sustained. ( 18 ) IN respect of appellant Mataprasad, the trial Court has rejected his confession, recorded under S. 164, Cr. P. C. , there remains the evidence of recovery of a 12 bore Katta and cartridges (Art. P) to be appreciated. Though the recovery of Katta was made, the same day morning at 6. 00 a. m. from a place situated a KM away, that seizure cannot be placed reliance to convict the appellant, as PW. 8 Khan Ahmad has stated that the Panchanamas were made at the police station and recoveries were also made there. There is another snag, even assuming that the recovery was made and the documents were prepared at the spot, there was inordinate delay in sending on 22-12-1976 the parcels of the empty cartridges and live cartridges along with the Katta to the ballistic expert. Though the ballistic expert has given his opinion that the empty cartridges seems to have been fired by the same Katta, but sending of the articles to the ballistic expert after a long delay creates a suspicion on the bona fides of the investigation. The prosecution has also not proved, what steps were taken in the course of investigation right from the recovery of articles till sending of the articles to the ballistic expert against tampering; That the seized articles were carefully packed and scaled in separate packets in the presence of witnesses. It has not been explained why the seized articles were kept in the police station for such a long period, the delay raises suspicion and gives rise to the suggestion on the part of the accused made in the cross-examination of the investigating officer that the empty cartridges and the Katta, sent to the expert, were not fired by the accused from the Katta and the live catridges are the ones recovered at the spot. See Santasingh's case, AIR 1956 SC 526 : (1955 Cri. LJ 930 ). See Santasingh's case, AIR 1956 SC 526 : (1955 Cri. LJ 930 ). ( 19 ) THERE is other evidence left, is of identification. That identification can safely be discarded, as the appellant was arrested on 31-10-1976 but the TIP was held on 27-12-1976. Besides, the other defects pointed out earlier, there was no explanation for the delay in not holding the identification parade at the earliest. Therefore, this appellant is also entitled to the benefit of doubt. ( 20 ) IN the result the appeal of the three appellants is allowed. The appellants/ accused are acquitted of the charges on benefit of doubt. The appellants are on bail. Their bail bonds shall stand discharged. order accordingly. .