SURYA PRASAD, J. ( 1 ) THIS is a criminal appeal against the judgment and order dated 31st January, 1979 passed by Sri R. S. Agarwal, the then learned Additional Sessions Judge, Aligarh in Session Trial No. 19 of 1978 convicting the appellant-accused under section 392 I. P. C. and sentencing him to four years Rigourous imprisonment thereunder. ( 2 ) THE prosecution case briefly stated is that on 14. 8. 1977 the informant Smt. Shakuntala Devi wife of Surendra Pal Singh, resident of Race Course Colony, Bulandshahr alongwith her sister Smt. Rajendri Devi was going by a Rickshaw from Raghubirpuri to the Hydel Colony Lal Diggi. Vikaram Singh, husband of Smt. Rajendri Devi was going ahead of them by a cycle. As soon as their Rickshaw reached the turning of the Anona House after crossing the Railway crossing, two persons (one following the other on cycles) came from the opposite direction. One who was ahead of the other, snatched away a golden chain from the neck of Smt. Shakuntla Devi at about 1. 30 P. M. She and her sister got down from the Rickshaw and raised alarm, hearing which Vikaram Singh, Ram Kishan Tiwari, Hasin Uddin resident of Shamshad Market, Ahmad Ali and Ishaq resident of Anona House and many others while raising alarm, chased the miscreants, who, however, whipped out the knives and threatened the witnesses to face dire consequences. As soon as both the miscreants reached the Railway crossing, a Rickshaw-puller, who was standing there tried to catch hold of them. The miscreant, who had snatched away the said golden chain, threatened to kill him. But the Rickshaw puller not caring for his life, caught hold of him, who assaulted him on his chest with a knife. Consequently, the Rickshaw-puller fell down and died on the spot. The miscreants ran away towards the west. ( 3 ) SMT. Shakuntla Devi lodged the First Information Report Ex. Ka- 1 about the incident at P. S. Civil Lines, Aligarh. None was mentioned as an accused in this report. It was, however, mentioned in it that the witnesses could identify the miscreants in the event of being produced before them. On the basis of the First Information Report, a chick report was prepared and a case was registered. ( 4 ) THE accused appellant was arrested by the Police on 15. 8. It was, however, mentioned in it that the witnesses could identify the miscreants in the event of being produced before them. On the basis of the First Information Report, a chick report was prepared and a case was registered. ( 4 ) THE accused appellant was arrested by the Police on 15. 8. 1977 at 12-30 P. M. A knife was also recovered from his possession. He was made Baparda and taken to the police station as such. He was ultimately sent Baparda to the Jail where he was put up for identification. On the completion of the investigation and on the receipt of the result of the identification proceedings, a chargesheet was submitted against the accused. ( 5 ) THE prosecution examined Hasin Uddin P. W. 5, the informant Smt. Shakuntala Devi P. W. 6 and her sister Smt. Rajendri Devi P. W. 7 as eye witness and other witnesses examined in this case are formal ones. Besides, the prosecution relied upon certain documents in support of its case. ( 6 ) THE accused pleaded not guilty. He has stated that all the allegations levelled against him are wholly wrong and incorrect. He has stated that he was arrested by the police from his house. He was not kept Baparda. The witness Hasin Uddin knew him from before. He was shown to the ladies before he was identified by them. ( 7 ) HAVING heard the learned counsel for the parties and having considered the evidence on record, the learned I Additional Sessions Judge convicted the sentenced the accused through his impurned order as mentioned above. Aggrieved, the accused preferred this appeal against the same. ( 8 ) HAVING heard counsel for the parties and perused the record. ( 9 ) HASIN Uddin P. W. 5 was residing in one of the quarters situate near the Employment Office. The accused is a resident of new Abadi of the Loco Colony, police station Civil Lines, Aligarh. There is a distance of 300 paces between the Employment Office and the new Abadi of the Loco Colony. Therefore, the possibility of this witness having seen the accused and vice-versa from before the incident cannot be ruled out. Moreover, he has already given his statement as a police witness in one or two cases in the past. He appears to be a pocket witness of the Police. Therefore, the possibility of this witness having seen the accused and vice-versa from before the incident cannot be ruled out. Moreover, he has already given his statement as a police witness in one or two cases in the past. He appears to be a pocket witness of the Police. Therefore, his statement cannot be implicity relied upon. ( 10 ) SMT. Shakuntala Devi P. W. 6 had become horrified and non-plussed on her golden chain being snatched away. That state of affairs dimmed her version and dulled her intelligence. Moreover, according to her, the possibility of her being stabbed by the miscreants with knives could not altogether be excluded. And yet she has asserted that she had identified the accused-appellant in the course of the incident and subsequently in the Jail at the time of test identification parade. She has also stated that she had not seen the accused anywhere after the incident and before the test identification parade in the jail. There is a suggestion made to her that the accused was shown to her after his arrest. Although she has denied the suggestion, yet the same appears to have a tinge of truth. This is so because she has not given any description about the physical features of the miscreants in the First Information Report, nor has she given her statement to that effect to the Investigating Officer. ( 11 ) SMT. Rajendri Devi P. W. 7 had not seen the face of the miscreant, nor had she seen any identifying mark on his face. Therefore her statement does not inspire confidence. ( 12 ) THE incident took place on 14. 8. 1977 at about 1. 30 P. M. The First Information Report was lodged same day at 2. 30 P. M. by Smt. Shakuntala Devi P. W. 6 as mentioned earlier. The accused appellant was arrested on 15. 8. 1977 at 12. 30 P. M. and sent to Jail on 16. 8. 1977. He was put up for identification on 1. 10. 1977 after 46 days from the date of his arrest. There is nothing on record to show that there was any such distinguishing mark of identification on the face of the accused appellant as to enable these witnesses to retain the same in their mind and to ultimately identify him on that basis in the Jail. 10. 1977 after 46 days from the date of his arrest. There is nothing on record to show that there was any such distinguishing mark of identification on the face of the accused appellant as to enable these witnesses to retain the same in their mind and to ultimately identify him on that basis in the Jail. No explanation has been offered by the prosecution for the delay in holding the test identification parade. In Soni-Appellant v. State of U. P. the Hon ble Supreme Court has observed as under:2. After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. The conviction rests purely upon his identification by five witnesses, Smt. Koori, Pritam Singh, Kewal, Chaitoo and Sinru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the appellant. We, therefore, allow the appeal and acquit the appellant. Similarly in Subhash and Shiv Shankar-appellants v. State of U. P. Opp. party. the Honble Supreme Court has observed inter-alia as under: Shiv Shankar was not put up for test identification parade promptly. The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features. ( 13 ) AFTER taking into consideration all the facts and circumstances of the case it can unhesitatingly be expressed that the possibility of the accused-appellant having been shown to the eye witnesses after the incident and before the test identification parade cannot be ruled out. ( 14 ) THE statements of the eye witnesses named above do not deserve to be believed for the reasons mentioned earlier. ( 14 ) THE statements of the eye witnesses named above do not deserve to be believed for the reasons mentioned earlier. In view of all this and in view of the discussions made by the Hon ble Supreme Court in the above mentioned cases, the appeal is allowed. The impugned judgment and order are set aside. He is acquitted of the offence punishable under section 392 I. P. C. The accused appellant is in jail. He is ordered to be released forthwith, if not wanted in any other criminal case. Appeal allowed. .