JUDGMENT 1. - This appeal is directed against the judgment dated 19.2.1982 passed by the learned Sessions Judge, Banswara convicting the each of the appellant of offence under Section 395 & 397 I.P.C. and sentenced to 7 years R.l. and to pay a fine of Rs. 250/-, in default of payment to further undergo 3 months R.l. 2. The prosecution case unfolded during the trial is that on 4.4.1979 RW. 4 Vijaylal and his wife P.W. 5 Jevni were at their field. Some 20 persons came there and committed a dacoity and took away their property like utensil's, watch, dhoti, shirt and Rs. 50/-. The Police registered the case of offence under Section 395 & 397 I.RC. and proceeded with the investigation. After usual investigation, Police laid charge-sheet against the six accused persons. 3. The accused persons pleaded not guilty and claimed trial. The prosecution in support of the case examined 16 witnesses and produced number of documents. The trial Judge acquitted the accused Kalia and convicted rest of the accused persons for the aforesaid offence and sentenced as stated above. 4. I have heard learned counsel for the parties and perused the record. RW. 4 Vijaylal has stated that while he was sleeping alongwith his wife, 4 accused persons entered in the house. They were armed with Kulhadi and sticks. About 3-4 persons were standing outside the house. Kulhari blow was given on the back of his neck. The accused persons committed dacoity of utensils, ornaments, rist watch, dhoti and shirt. They also assaulted his wife RW. 5 Jevni has also made statement in the same line. The injuries on the person of F.W. 4 Vijay Lal has been proved by RW. 12 Sushil Metha and RW. 14 Dr. J.P Sharma. The appellant Hurji was arrested on 13.4.1979 and he was put to the identification parade on 17.5.1979 vide Ex.P/15. He was identified by RW. 4 Vijaylal. The appellant Maila was arrested on 14.4.1979 and he was put to the identification parade on 17.5.1979 vide Ex. P/17. PW. 4 Vijaylal identified him. The appellant Nathu was arrested on 14.4.1979. He was put to the identification parade on 17.5.1979 vide Ex.P/30. He was also identified by P.W. 4 Vijaylal. The appellant Gotam was arrested on 26.4.1979 and he was put to the identification parade on 17.5.1979 identification memo Ex.P/44. P/17. PW. 4 Vijaylal identified him. The appellant Nathu was arrested on 14.4.1979. He was put to the identification parade on 17.5.1979 vide Ex.P/30. He was also identified by P.W. 4 Vijaylal. The appellant Gotam was arrested on 26.4.1979 and he was put to the identification parade on 17.5.1979 identification memo Ex.P/44. Both the accused Gotam and Dol Singh also have been identified by RW. 4 Vijaylal. The identification parade was conducted by PW. 16 Ram Kalyan. He has proved the identification proceedings vide Ex. P/4. PW. 11 Mujiburrehman has stated that all the accused persons while in custody were kept Baparda. The learned counsel appearing for the accused appellants submitted that the prosecution has failed to establish the identity of the accused appellants. He has severely criticised the identification proceedings. P.W. 4 Vijaylal has admitted that- the accused persons had muffled their facts. It is thus, submitted that he could not have identified the accused. He also submitted that in case of Hurji, Maiia and Nathu there is a delay in arranging the identification parade of 34 days and in case of Gotam and Dol Singh there is delay of 21 days. Learned counsel for the appellants has relied upon the decision of the Apex Court reported in 1983 Cr.L.R. (SC) 527. In the said case there was a delay in a arranging identification parade of 42 days from the date of the arrest. The Court held that the identification parade throws a doubt on the genuineness thereof. In the instant case there is delay of 34 days in case of the 3 accused persons namely; Hurji, Maila and Nathu and in case of appellants Gotam and Dol Singh there is delay of 21 days. The prosecution has not given any satisfactory reason for the delay in arranging identification parade. The only reason given for delay in arranging identification parade by the learned Public Prosecutor is that the Police was engaged in recovery proceedings. In my view, this can hardly be of any reason. Considering the facts of the case, in my view, the delay in arranging identification parade is fatal to prosecution. Thus, the accused cannot be connected with the dacoity on the basis of the identification parade. 5. In my view, this can hardly be of any reason. Considering the facts of the case, in my view, the delay in arranging identification parade is fatal to prosecution. Thus, the accused cannot be connected with the dacoity on the basis of the identification parade. 5. As regard, evidence of recovery prosecution has relied upon the recovery made from each accused, as follows- (i) HURJI-A pitcher and Tepala has been recovered from the accused Hurji vide Ex.P/16 in pursuance of the information given by the accused vide Ex.P/26. The articles have been identified by PW. 4 Vijaylal and RW. 5 Jevni. Nothing has been pointed on basis of which evidence of this recovery can be disbelieved. Thus, it is held that the prosecution has succeeded in establishing the recovery of the articles, from the possession of Hurji in pursuance of the information given by him. (ii) MAILA-In pursuance of the information given by the accused vide Ex.P/28 a recovery of the utensils was made vide Ex.P/29 i.e., Tapeli, Lota and Parat. The said articles have been identified by RW. 4 Vijaylal and P.W. 5 Jeevni. Nothing has been pointed out on basis of which the evidence of recovery against this witness can be disbelieved. The identification memo has been proved by PW. 16 Ramkalyan. It is thus held that the prosecution has succeeded in establishing the recovery of articles against this appellant. (iii) NATHU-In pursuance of the information given by this appellant vide Ex.P/45 wrist watch has been recovered vide Ex.P/21 from the possession of the appellant. The wrist watch has been identified by PW. 4 Vijaylal. The identification memo has been proved by RW. 16 Ram Kalyan. It is contended by the learned counsel that the watch of the same model was not mixed and, therefore, no reliance can be placed on the identification. PW. 16 Ramkalyan has stated that there were three watches of the same model. He has also stated that it is difficult to arrange the watch of same model. I do not find any infirmity in the identification of the property and as such the evidence of recovery is proved against this appellant as well. (iv) GAUTAM-ln pursuance of information given vide Ex.P/41 a shirt has been recovered vide Ex.P/24 from the possession of this accused appellant. The shirt has been identified by P.W. 4 Vijaylal. The identification memo has been proved by RW. (iv) GAUTAM-ln pursuance of information given vide Ex.P/41 a shirt has been recovered vide Ex.P/24 from the possession of this accused appellant. The shirt has been identified by P.W. 4 Vijaylal. The identification memo has been proved by RW. 16 Ramkalyan. The shirt is of common nature worn by persons in rural area. No specific mark of the shirt has been pointed out. In view of this, no reliance can be placed on recovery from this appellant. (V) DOL SINGH-In pursuance of the information given vide Ex.P/42 a 'Dhoti' has been recovered vide Ex.P/22 from the possession of this appellant. The identification memo has been proved by the statement of RW. 16 Ramkalyan. The 'Dhoti' is of common nature, which is worn by the persons in the rural area. Thus, on the basis of such evidence, the appellant cannot be connected with the crime of dacoit. 6. Thus, the prosecution has succeeded in establishing the recovery against the appellants Hurji, Maila and Nathu. The presumption can be drawn that they are the receiver of stolen articles found in their possession. Therefore, they are liable to be convicted of offence under Section 412 I.RC. So far as the accused appellant Gautam and Dol Singh are concerned, the recovery has not been established against them, in view of this they cannot be connected of offence under Section 412 I.P.C. 7. In view of the aforesaid discussion, the appeal is partly allowed and the conviction of the each appellant under Section 397 & 395 I.RC. is set-aside. In case of appellants Hurji, Maila and Nathu the conviction of offence under Section 397 I.P.C. is converted to Section 412 I.RC. Each of them is sentenced to 3 years R.l. The appellants Gautam and Dol Singh are acquitted of offence under Section 397 & 395 I.RC. The appellants Hurji, Maila and Nathu are on bail. They shall surrender the custody. Their bail bonds stand cancelled. The Chief Judicial Magistrate, Banswara is directed to ensure that the said accused undergo the rest of sentence. f *******