JUDGMENT Irshad Hussain, J. 1. Both the abovenoted appellants were convicted and sentenced to undergo five years' R.-I. and a fine of Rs. 2000.00 each and three years R.I. Under Sections 394 and 411 of the I.P.C. respectively, per judgment and order dated 18-12-2000 passed in S. T. No. 262 of 1998. 2. The prosecution case, in brief, is that on 31-1-1998 at about 12.30 P.M. near cremation ghat at Bareilly road within the circle of P. S. Lalkuwan, District Nainital, one Kashmiri Lal Taneja (P.W. 2) was way-laid by three miscreants. They robbed him of sum of Rs. 25,000.00. On alarm being raised witnesses Iqbal Chandra Batra (P.W. 3) and Rudra Prasad Tiwari came there and saw the occurrence. The culprits, however, made their escape possible and could not be arrested. Victim sustained injuries and was medically examined at P. H. C., Kichha. The report of the occurrence was lodged by the victim's brother Kashmiri Lal Rawal (P.W. 3), the same day at 6.10 p.m. A case under Section 394 of the I.P.C. was registered. It is also the case of the prosecution that on 1-2-1998 at about 8.30 p.m. in the ground of M. B. Degree College, Haldwani, some miscreants were found sitting in suspicious circumstances and on interception, out of four three were arrested. Out of these three, the two are the appellants, Anil Sharma alias Bhayyan and Ramesh and the third Arjun Singh was also convicted along with these two appellants. On search by the police party, sum of Rs. 8000.00 was recovered from these three. Appellant Anil Sharma was found carrying Rs. 2,000.00 whereas sum of Rs. 3,000.00 was found in possession of appellant Ramesh and they stated that they have robbed the above victim and received their share of the booty. The appellants were thereafter put to test identification parade on 24-3-1998 and both these were correctly identified by the victim P.W. 2 and P.W. 3, Kashmiri Lal and Iqbal Chandra Batra respectively. The appellants along with their companion were charge-sheeted and their case was committed to Court of Sessions, which came to be tried by Additional Sessions Judge, Haldwani District Nainital. 3. Appellants pleaded not guilty and contended that they have been falsely implicated in the case. 4. In the trial nine witnesses were examined by the prosecution. The appellants along with their companion were charge-sheeted and their case was committed to Court of Sessions, which came to be tried by Additional Sessions Judge, Haldwani District Nainital. 3. Appellants pleaded not guilty and contended that they have been falsely implicated in the case. 4. In the trial nine witnesses were examined by the prosecution. Out of these, P.W. 1 Kashmiri Lal Rawal is the informant, who lodged the report, Ext. Ka.-1 of the occurrence, P.W. 2, Kashmiri Lal Taneja is the victim-injured and he narrated the version as disclosed in the F.I.R. and reproduced above. He had correctly identified both the appellants and one another in the test identification parade. P.W. 3 Iqbal Chandra Khurana is the eye witness of the occurrence, and he also supported the prosecution case. He had also correctly identified both the appellants in the test identification parade. P.W. 4, S. I.-I. H. Zaidi was one of the members of the police party which arrested the appellants on 1-2-1998 and effected recovery of the case. He stated that sum of Rs. 2,000.00 was recovered from the possession of Anil Sharma alias Bhaiyan. According to him, this appellant told the police party that the sum was his share of the booty of Rs. 25,000.00 looted from the victim near the cremation Ghat within the circle of Police Station Lal Kuwan. At the time of the arrest and recovery of Rs. 3,000.00, appellant Ramesh is alleged to have made similar confession to the police party. Copy of the memo, of recovery is Ext. Ka.-3. P.W. 5 Sri Vinod Kumar Rai was the Magistrate who conducted the test identification parade on 24-3-1998. He proved the proceedings and memo of identification, Ext. Ka. 4, P.W. 6 Dr. Narendra Kumar has medically examined the injured-victim Kashmiri Lal and he proved the injury report is Ext. Ka.-5. P.W. 7 S. I. Narendra Deo is the Investigating Officer of the case and he gave evidence to prove the steps taken towards the investigation, P.W. 8, S. I. Sushil Singh has also partly investigated the case and he proved the steps taken towards the investigation and submitted the Charge-sheet, Ext. Ka.-8. P.W. 9 formally proved the copy of the general diary regarding registration of the case. 5. In defence no oral evidence was adduced. However, certified copies of the statements of witnesses T.N. Mehra and Smt. Kusum Mehra recorded in? Ka.-8. P.W. 9 formally proved the copy of the general diary regarding registration of the case. 5. In defence no oral evidence was adduced. However, certified copies of the statements of witnesses T.N. Mehra and Smt. Kusum Mehra recorded in? criminal case No. 369 of 1998, under Sections 457, 380, 411 I.P.C., State v. Anil alias Bhaiyyan and Ors. and copy of the statement of witness Satish Joshi recorded in criminal case No. 1042 of 1938, State v. Anil Sharma were brought on record by the appellants. Learned Addl. Sessions Judge on the basis of his appreciation of material on record came to the conclusion that the appellants were correctly identified by the two witnesses and further that the evidence of the police witness proved that the amount which was part of the booty was recovered from the possession of the appellants and, therefore the charges levelled against them stand proved beyond doubt. They were accordingly convicted and sentenced as mentioned above. 6. Heard learned counsel for the appellants and the A.G.A. and carefully perused the evidence on record. 7. Learned counsel for the appellants submitted that the evidence of identification adduced by the prosecution was not reliable and convincing because features or identification marks of the culprits were not mentioned in the written F.I.R. and further that the identification parade was conducted after a considerable delay of 51 days from the date of arrest, for which no explanation, whatsoever, had been given in the evidence on behalf the prosecution. It was also submitted that the evidence of the police witness, P.W. 4, S. I., I. H. Zaidi could not have been relied upon in regard to the confession allegedly made before the police by the appellants in utter disregard to the provision of Section 25 of the Indian Evidence Act and that the learned Addl. Sessions Judge should have ignored the evidence to this effect also. Having carefully considered the legal aspects of the case in the light of the material on record, the submissions of the learned counsel for the appellants have force. 8. At the outset reference need to be made to Section 25 of the Indian Evidence Act which mandates that no confession to a police officer shall be proved as against a person, accused of any offence. 8. At the outset reference need to be made to Section 25 of the Indian Evidence Act which mandates that no confession to a police officer shall be proved as against a person, accused of any offence. In the instant ease contrary to this mandate, learned Additional Sessions Judge went on to place implicit reliance on the evidence of police witness named above and came to the conclusion that part of the money which was looted from the victim of the case was recovered from their possession the very next day of the occurrence and, therefore they were connected to the occurrence. It was not one of those cases where recovery, of incriminating article or money is made at the instance of the accused as contemplated by the provision of Section 27 of the Evidence Act. Therefore, the learned Additional Session's Judge was not legally obliged to take note of the evidence of the prosecution about so-called confession made to the police officer in regard to the amount recovered from them and their alleged role in the commission of the crime of robbery on 31-1-1998 at 12.30 p.m. In short the recovery of the money and the alleged confession of the appellants were not of any avail to the prosecution in this case. 9. It is of also significance that no identification marks or features were disclosed in the written F.I.R. (Ext. Ka.-1). The arrest of the appellants was made on 1-2-1998 and as mentioned above the test identification parade came to be held after 51 days on 24-3-1998. No explanation of the delay has been put forth by the prosecution and such a long delay throws doubt on the genuineness of identification. In the case of Soni v. State of U.P., 1983, Criminal Law Report (SC), at page 527, the identification parade held after 42 days of the arrest was found doubtful and reliance was not placed on the test identification evidence. The principle laid down in the reported case apply to the facts of the instant case and it can safely be said that the learned Addl. Sessions Judge was not justified in placing implicit reliance on the test identification evidence of the prosecution. The principle laid down in the reported case apply to the facts of the instant case and it can safely be said that the learned Addl. Sessions Judge was not justified in placing implicit reliance on the test identification evidence of the prosecution. In connection with the reliability of the test identification parade it may also be mentioned here that witness Kashmiri Lal Taneja (P.W.-2) gave out that he came to know after about two days of the occurrence that the culprits have been arrested and that the information to this effect was given to him by the police at his house. If some culprits were arrested, there was no occasion for the police to give such information in this manner to the victim. In fact the evidence of the said victim does not rule out the possibility that the opportunity was given to him to have a look on the arrested culprits and therefore on this count also his evidence of identification ceased to be reliable and convincing. As regards the evidence of other witness of the identification, Iqbal Chandra (P.W. 3) is concerned, it need to be mentioned that according to him the culprits have run away to a distance of about 500 paces when he reached near the scene of the occurrence. It was difficult for him to have noted the features of the culprits from such a long distance and this aspect of the matter also show that the evidence of the witness could not have been safely relied upon in regard to the identification of the culprits. Out of the two appellants, one Ramesh was even known to him from before the occurrence as admitted by the witness. This also shows that the evidence of the identification was not otherwise convincing and learned Additional Sessions Judge made an error in placing reliance on the evidence of the prosecution. 10. For the reasons and discussions made above, it is evident that the evidence of the prosecution was not reliable and the charges against the appellants were not been established beyond reasonable doubt. Both the appellants, therefore deserve to be held not guilty and to be acquitted of the charges levelled against them. 11. In the result the appeals are allowed. The judgment and order of convicting and sentencing the appellants under Sections 394/411 of the I.P.C. is set aside. Appellants are on bail. Both the appellants, therefore deserve to be held not guilty and to be acquitted of the charges levelled against them. 11. In the result the appeals are allowed. The judgment and order of convicting and sentencing the appellants under Sections 394/411 of the I.P.C. is set aside. Appellants are on bail. Their bail bonds are cancelled and sureties discharged.