JUDGMENT 1. - The accused appellant has been convicted by the learned Additional Sessions Judge, Jaipur district, jaipur in Sessions Case No.11/87 under Sections 395, 396, 397 Indian Penal Code. Under the first count he has not been sentenced to any imprisonment and the learned Additional Sessions Judge while sentencing him imprisonment for life and to pay a fine of Rs. 1,000/- under Section 396 Indian Penal Code has observed that in that sentence, the sentence under Section 395 Indian Penal Code is also covered. For an offence under Section 397 Indian Penal Code, the accused has been sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 1,000/-. The accused appellant has also been convicted under Section 27 of the Arms Act and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 1,000/-. The accused appellant has also been convicted under Section 27 of the Anus Act and sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs. 1,000/-. He has also been sentenced in default of payment of fine. 2. In the night of 9th April, 1980 at about 8.00 p.m. in Dhani Regran village Bhoma was in the house of one Beeja Raiger, 8-10 miscreants armed with weapons including gun and country made pistol committed dacoity. A report of the incident was lodged. On hearing the alarm one Dhood Singh son of Mangej Singh came to rescue and one out of ten miscreants fired at him as a result of which he died. The accused persons made their escape. They had taken away with them the silver ornaments which the ladies of the house were having on their person. It appears that no progress could be made in the investigation of the case and it was only on 10th August, 1981 i.e. almost after about 16 months of the incident that the accused appellant was arrested vide arrest memo Ex. P.24. Rather he was handed over by the military authorities where he was employed. After his arrest he is said to have made a discovery statement Ex. P.24. Rather he was handed over by the military authorities where he was employed. After his arrest he is said to have made a discovery statement Ex. P 26 to the SHO Shri Badri Prasad Sharma PW 17 and consequent to his in formation in the presence of two motbirs Hanuman PW15 and Surjaram PW16, he got recovered a country made pistol and three empty cartridges as well as silver ornaments which are said to have come to his share. After the aforesaid recovery he was sent to jail on 12th August, 1981 and an identification parade was held on 14th August, 1981 at Sub jail, Behror at 5.20 p.m. vide Ex. P-9 and in the identification parade Phool Chand, Ram Chandra, Boduram, Charjuram and Sawri Singh correctly identified the accused appellant. The accused-appellant before the Magistrate who conducted the identification parade had made his statement that the above named witnesses had seen him in the Police Station. Guman Singh PW 23 was the Munsiff Magistrate Bchror and it is he who conducted the identification parade. 3. During the course of commission of crime Smt. Dhapli, Sanjya, Ram Chandra, Phool Chand and Prabhati were also beaten allegedly at the hands of the miscreants and they received injuries. Their injuries were examined by Dr. Raghuveer Singh Gaur and they have been proved vide Ex.P.2 to P.4 respectively. 4. As said above, on the information of the accused/appellant, silver ornaments and a country made pistol and three empty cartridges were recovered. The silver ornaments were identified by Beeja and Sohan and the parade was conducted by PW 22 Sant Kumar Tehsildar and the Executive Magistrate. The ornaments which were identified were: One Tadda Chandi, Two Nag Bata Chandi, Two silver Kadas and Two Birwali. 5. The learned Additional Sessions Judge on the evidence of identification as well as recovery of the ornaments and the recovery of a country made pistol convicted and sentenced the accused/appellant as aforesaid. 6. It was contended by the learned Counsel for the accused/appellant that the occurrence took place on 9th April 1980 and the FIR was lodged immediately thereafter. Neither in the FIR nor in the statement under Section 161 Criminal Procedure Code the features of the miscreants or any of them have been shown. Therefore, it was not possible to identify them after a period of about one year when the accused persons were arrested. Neither in the FIR nor in the statement under Section 161 Criminal Procedure Code the features of the miscreants or any of them have been shown. Therefore, it was not possible to identify them after a period of about one year when the accused persons were arrested. It was further contended by the learned Counsel that there was no source of light and it was dark and the faces of the miscreants were muffled and, therefore, none of the persons could have occasion to have seen or identified any accused person. Learned Counsel further contended that the evidence is not reliable when the accused has said before the Magistrate who had conducted the identification parade that he was seen by the witnesses who have identified him in the Police Station. 7. Coming to the recovery of the country made pistol, learned Counsel contended that the recovery is not proved because the two witnesses of recovery namely PW 15 Hanuman and PW 16 Surjaram have not supported the case of the prosecution and secondly the learned Additional Sessions Judge has wrongly held that from the report of the ballistic expert it can be said that the same weapon, the country made pistol, was used in the crime. Apart from it the more possibility that the empty cartridges were recovered might have been fired from a country made pistol of 12 bore which was recovered from the accused appellant and it cannot be said that the weapon said to be recovered from the accused appellant was used. Coming to the recovery of the ornaments, learned Counsel contended that the ornaments are of old pattern and further two witnesses Hanuman PW 15 and Surjaram PW 16 have not supported the case of the prosecution as said above and recovery becomes doubtful. 8. Learned Counsel has taken us to the evidence of the witnesses and it can be said that there was no source of light at the time of incident and, therefore, it was not possible for any of the witness to have identified the accused. We have referred to the identification memo Ex. P.9 and have also said that as many as five witnesses are said to have identified namely Phool Chand, Ram Chandra, Badu Ram, Chaju and Sawai Singh and they have been examined as PW 3, PW 4, Chaju as PW 10 and Sawai Singh as PW 2 respectively. We have referred to the identification memo Ex. P.9 and have also said that as many as five witnesses are said to have identified namely Phool Chand, Ram Chandra, Badu Ram, Chaju and Sawai Singh and they have been examined as PW 3, PW 4, Chaju as PW 10 and Sawai Singh as PW 2 respectively. Bodurani does not appear to have examined, though in the Court other witness also said that they identified the accused, but in the absence of identification parade by then merely because they have said in the Court that the accused appellant was one of the miscreants, their evidence should not be relied upon, rather it will not be safe to rely on their evidence. PW 3 Phool Chand has identified the accused appellant in the Court. He stated that he does not know the accused appellant by name and it is not possible to say as to who was Madan Singh and who was Haji Khan who was acquitted by the Trial Court. According to him when the accused persons throwing light from their torches on the ladies of the house, he identified the accused. It is common knowledge that one canonlysee the face of that person on which the light of the torch is focused and not of the person who is throwing the light. He has stated that a Chimney was also there in the house at the time when dacoity took place, but his statement arc not corroborated with any evidence inasmuch as other witnesses said that when miscreants came to the house, they had broken the lantern. He did not stand on the police statement with which he was confronted about the presence of any light of lantern. He did not even mention in the police statement with which he was confronted that he has identified the accused persons in the torch light. He admits that he had not narrated the features of any of the accused person to the police. PW 4 is Ram Chandra, the other witness who has identified the accused appellant, in the identification parade. He states that it was a moon set night, the statement not made by any other witness and also by Phool Chand. He states that miscreants had extinguished the lantern as and when they came. He also states that the miscreants have torches with them. He states that it was a moon set night, the statement not made by any other witness and also by Phool Chand. He states that miscreants had extinguished the lantern as and when they came. He also states that the miscreants have torches with them. He has also not disclosed the features of any of the miscreants to the police. He has also stated that the dacoits were muffled and they had covered their faces and this fact was disclosed by him to the police. PW 2 Sawai Singh did not support the case of the prosecution and was declared hostile. PW 10 is the last witness Chajuram and he has identified the accused in the Court and stated that he identified the accused in the identification parade. He stated in the cross examination that he is unable to say that the accused persons had covered their faces. He states that he has seen the accused in the Police Station. 9. We are of the opinion that no reliance can be placed on the identification parade. That apart unless the features of the accused persons would have been disclosed, one could not have been in a position to identify the accused persons after 16 months of the incident. We need not discuss other evidence which has been recorded as in the identification parade only six witnesses have taken part and the identification parade does not connect the accused with the crime. 10. Coming to the recovery of the ornaments, we have already said above that Hanuman PW 15 and Surjaram PW 16 have not supported the case of prosecution. Therefore, the evidence of recovery goes. Remaining evidence on record is of country made pistol and as said above it cannot connect the accused with the crime because the empty cartridges were recovered from the spot and they were fired from a country made pistol of 12 bore. The mere possibility of its being used does not connect the weapon with the offence. 11. We are surprised to know that the learned Additional Sessions Judge has also convicted the accused-appellant under Section 27 of the Arms Act. 12. Consequently, we hereby allow this appeal, set aside the judgment dated 7.9.1991 of the learned Trial Court and acquit the accused appellant of the chargesunder sections 395, 396, 397 Indian Penal Code and Section 11 of the Arms Act. 12. Consequently, we hereby allow this appeal, set aside the judgment dated 7.9.1991 of the learned Trial Court and acquit the accused appellant of the chargesunder sections 395, 396, 397 Indian Penal Code and Section 11 of the Arms Act. The sentence awarded under the aforesaid counts are set aside. The accused is in jail. He shall be released forthwith, if not wanted in any other case.Appeal allowed. *******