G. S. N. TRIPATHI, J. Accused Sajid, Manjoora and Akbar have been convicted on a charge under Section 395, I. P. C. and sentenced to undergo 5 years R. I. Accused Nanhey has been convicted on a charge under Section 412, I. P. C. and sentenced to undergo 5 years R. I. The order of conviction and sentence was recorded by the then IV Additional Sessions Judge, Moradabad by his judgment and order dated 23-11-1979 passed in S. T. No. 636 of 78, District Moradadad. 2. The complainant Masudul Hasan, PW 1 lodged the report at the police station Hayatnagar, district Moradabad on 27-11-1977 at 4 p. m. The distance of the police station is 7 miles. The incident is said to have been taken place on 26-11-1977/27-11-1977 at 12 midnight. It is alleged in the F. I. R. that in the night of occurrrence the complainant was sleeping at his tubwell. His servant Ghulam was also there (Ghulam not produced ). At about 12 midnight, the complainant got up to make water when he was arrested by six persons. One of them had single barrel gun, two had pistols and three had lathies. On the point of gun, they removed two pattas of the tubewell, one bucket, one cushion, one wrench and one bag of calcium fertiliser. In the electric light, Sajid and Esmail (Esmail died) were identified. In the morning, Abdul Salam, PW 5 informed the complainant that the dacoits had committed dacoity at his tubwell also. Thereupon, some people were gathered in number of about 20 and they proceeded towards the house of Sajid. He was not available. Thereafter, they went to the house of Esmail. Four persons were present there. They tried to run away but they were arrested on the spot by these people. They included Sajid, Esmail and two other unknown persons. One of them was using guilt and the other was using khes of Abdul Salam. The names of these persons were also revealed by them as Manjoor and Akbar. They further said that two other persons, namely Fazal and Chhotey wire also in their company while committing dacoity and they had taken most of the looted goods. Further pressure was applied. These persons revealed that they had committed dacoity earlier also. Thereafter, this party went to the house of Nanhey and Fazal. They further said that two other persons, namely Fazal and Chhotey wire also in their company while committing dacoity and they had taken most of the looted goods. Further pressure was applied. These persons revealed that they had committed dacoity earlier also. Thereafter, this party went to the house of Nanhey and Fazal. Nanhey was arrested on the spot and from his possession from a sugarcane field, two pattas of the tubewell were recovered. Fazal was not available. Thereafter all these goods and the arrested accused were brought to the police station. 3. PW 4, Nirmal Singh prepared the chik and G. D. at the police station. He also prepared memo of the recovered articles brought by the witnesses. 4. The I. O. Satya Pal Singh took the investigation in his hand after making entries of the G. D. and chik in the case diary and interrogating the H. C. Nirmal Singh, he interrogated the accused. Thereafter, he went to the site and prepared site-plan and ultimately completed the investigation. He submitted a charge-sheet the accused. 5. Accused Sajid, Manjoora, Akbar and Nanhey and Fazal were tried together. Fazal has been acquitted by the learned Additional Sessions Judge, The remaining four accused were convicted and sentenced as noted above. 6. Feeling aggrieved, the accused have filed this appeal. 7. I have heard learned counsel for the appellants at a stretch and gone through the record. I find that there is much force in this appeal and it deserves to be allowed. 8. The most revealing aspect of the case is that Allegedly the incident took place in the night of 26/27- 11-1977 around 12 midnight, but the F. I. R. was lodged on 27-11-1977 at 4 p. m. although the distance of the police station is only 7 miles. The manner in which this delay has been sought to be explained, does not inspire confidence. Admittedly about 20 persons had gathered in the morning, when the complainants party started investi gation process itself. One of them could have easily been sent to the police station to report the matter and everything could have been done in legalised manner with a fineness. But instead of doing so and adopting the correct legal procedure, a crude method was adopted leaving everything to doubt. 9. One of them could have easily been sent to the police station to report the matter and everything could have been done in legalised manner with a fineness. But instead of doing so and adopting the correct legal procedure, a crude method was adopted leaving everything to doubt. 9. There is no reason why one person was not sent to the police station to report the matter early in the morning. This way, the want of verifiable explanation on this point tells a lot of untold story as to how the things were manipulated in between. 10. Public has been given authority to arrest a person while committing an offence or immediately after running away with the booty. Bui it has no authority to make investigation alter tempers have cooled down and the accused have settled themselves at their own houses. This manner to carry out recovery by the complainant and his party, is not legally approved. Therefore, I find that everything has been done in an illegal manner and no reliance can be placed upon it, 11. No identification parade was held either of the goods or of the accused. Only two persons, namely Sajid and Esmail (deceased) have been named in the F. I. R. Other persons who were allegedly identified during the course of dacoity, atleast for them, identification parade could have been held. But instead of choosing this legal method, the complainant and the witnesses became investigators and judges-all in one. This a sort of the behaviour on the complainants side leaves a lot to be appreciated. At least this court does not approve of such crude method towards the fag end of the 20th century. 12. There is absolutely no reason why the identification parade of the recovered goods and the accused was not done. Even if it is assumed that these goods recovered from the accused, which they claimed as their own, identification parade could have been held in finding out the truth. But that was not done. 13. A part from these basic defects in the prosecution case. I find that the witnesses are not reliable. 14. PW 1 Masudul Hasan is the complainant himself. He does not say as to what weapons each accused carried at the time of dacoity, although he had ample opportunity to watch the accused and their weapons during the entire course. 13. A part from these basic defects in the prosecution case. I find that the witnesses are not reliable. 14. PW 1 Masudul Hasan is the complainant himself. He does not say as to what weapons each accused carried at the time of dacoity, although he had ample opportunity to watch the accused and their weapons during the entire course. He does not explain as to why he did not lodge the report earlier. In paragraph 3 of his examination-in-chief he states that he knew accused Fazal Hasan (now acquitted ). But he did not name him in the F. I. R. 15. After the dacoits had left after looting everything, which the complainant had at his tubewell, there is no reason why the complainant and his servant Ghulam remained at the tube-well till sun rise. In the normal course, they all should have gone to the village, which is at a distance of 1 1/12 furlongs only from the tube-well. They could have cried at the pitch of their voice from there itself after exit of the dacoits, inviting the attention of the village people. But that was not done. It was after 12 or 16 hours, that these persons thought of going to the police station. There is no reason why they remained all along of the tube-well after the exit of the dacoit. He admits in paragraph 4 that his brother is an influential parson. In paragraph 8, he admits that Dr. Wirk is the brother-in-law of his brother. He is M. L. A. It appears that in consultation with his brother and Dr. Wirk, the then than M. L. A. , things were being cooked up for the whole day and after consultation and confabulation, a cooked up story was put before the police, which itself was under the influence of the M. L. A. Without applying the legal standard and following the legal process, the police has blindly challaned the accused without caring for holding identification parade for the goods and the accused. 16. In paragraph 12, the complainant admits that a dacoity had also been committed at Abdul Salams tubewell in the same night. But he did not lodge the resport although he had also gone to the police station. 17. Mushtaq, PW 2 admits that he saw the dacoits from behind and he could not identify them. 16. In paragraph 12, the complainant admits that a dacoity had also been committed at Abdul Salams tubewell in the same night. But he did not lodge the resport although he had also gone to the police station. 17. Mushtaq, PW 2 admits that he saw the dacoits from behind and he could not identify them. However he was in the raiding party accompany ing the complainant, which went on making recoveries and arrests. For the reasons noted above while discarding the statement of the complainant, mutatis mutandis I reject the statement of Mustaq, PW 2 as well. 18. I find that his statement is not reliable as the entire theory of recovery and arrest is bogus. 19. PW 3, Mirajul Islam is also a witness of the recovery and arrest. Further he says that the dacoity had taken place at his tubewell in the night of 23-11-1977 and he lodged the report. A copy of that report is not avail able. He did not know what goods he had mentioned in his F. I. R. as looted. So his statement that some of the goods recovered from the accused belonged to him, cannot be accepted. Moreover, since identification parades of the accused and the goods have not taken place, no reliance can be placed upon his testimony. 20. PW 5 Abdul Salam is a person from whose tube-well also a dacoity had taken place in the same night. But he did not report the matter himself. Here, he has come to say that Mustaq was sleeping in the night of dacoity at his tube-well. But before the I. O. , he said that early in the morning, he went to the complainants tubewell, where he learnt about the dacoity there. But when coerced of this statement, it was not accepted by him in the cross-examination. In paragraph 4, he states that he did not state before the I. O. that he had gone to the tubewell of the complainant early in the morning. He did not join in identification parade regarding recovery of khes and patta. The result is that his testimony also does not inspire confidence. I find that the case suffers from fatal legal infirmities and it cannot stand legal scrutiny. The result is that the order of conviction and sentence recorded by the learned Addl. Sessions Judge, cannot be upheld by this Court. The result is that his testimony also does not inspire confidence. I find that the case suffers from fatal legal infirmities and it cannot stand legal scrutiny. The result is that the order of conviction and sentence recorded by the learned Addl. Sessions Judge, cannot be upheld by this Court. Therefore, the appeal deserves to be allowed. 21. The appeal is allowed. The judgment and order passed by the learned Additional Sessions Judge, Moradabad, dated 23-11-1979 are set aside. The accused are on bail. Their bail bonds and surety bonds arc discharged. Appeal allowed. .