U. S. TRIPATHI, J. ( 1 ) THE above two appeals have been preferred against the judgment and order dated 4-8-1980 passed by Sri Mohammad Asgar Khan, the then learned IVth Additional Sessions Judge, Etawah in Sessions Trial No. 221 of 1978 convicting both the appellants under Section 396, I. P. C. and sentencing them to undergo imprisonment for life. ( 2 ) THE prosecution story, briefly stated, was as under :-BHANU Prakash (P. W. 1) resident of village Ghasara, P. S. Achhalda, district Etawah had his house in the said village. On the night of 5-2-1978 Bhanu Prakash (P. W. 1) was sleeping on his roof (Anta) with his licensed gun and cartridges. His other family members were sleeping inside the house. At about 11 p. m. Bhanu Prakash awoke hearing noise. When he woke up he peeped from his jangala and a shot was fired towards him. He saw 8 to 10 armed dacoits in front of his house and they were firing. He took position and started firing on dacoits. Manik Lal (P. W. 2), Gajadhar (P. W. 3), Mool Chandra and other persons of the village also came to his door with lathi, danda and torches. One Rajeshwar Dayal also brought his licensed gun. Four-five dacoits climbed on the roof of Bhanu Prakash (P. W. 1 ). By shots fired by Bhanu Prakash one dacoit received injuries and fell down in the angan of Rajendra, adjacent to the house of Bhanu Prakash. Due to the pressure mounted by villagers, dacoits could not enter into the house of Bhanu Prakash. But they fired shots and Km. Meera daughter of Bhanu Prakash sustained injuries and died. Taking the injured dacoits, the other dacoits started running. In the way, the other villagers chased them. On it, the dacoits again started firing, which caused injuries to Atma Ram, Raja Ram and Rajeshwari. Atma Ram died on the spot. Raja Ram subsequently died in the hospital. Bhanu Prakash (P. W. 1) and other witnesses recognised the faces of dacoits in the light of torches possessed by the witnesses as well as the dacoits. ( 3 ) AFTER the occurrence Bhanu Prakash (P. W. 1) prepared written report (Ext. Ka-1) and lodged the same at police station Achhalda on the same night at 4 a. m. Chik F. I. R. (Ext. ( 3 ) AFTER the occurrence Bhanu Prakash (P. W. 1) prepared written report (Ext. Ka-1) and lodged the same at police station Achhalda on the same night at 4 a. m. Chik F. I. R. (Ext. Ka-2) was prepared by Head Constable, Rameshwar Dayal Pathak, who made an endorsement of the same at G. D. report and registered a case under Sections 399, 402, 398, 307 and 302, I. P. C. against unknown persons. ( 4 ) INVESTIGATION of the case was taken up by Sri Parashu Ram Yadav (P. W. 4 ). He interrogated Head Moharrir at the police station and reached the spot along with Sub-Inspector Raghubir Singh and other Police Officers. He got conducted inquest of the dead bodies of Km. Meera and Atma Ram through Sub-Inspector Raghubir Singh, who prepared inquest reports (Ext. Ka-3 and Ext. Ka-4) and other relevant papers. Both the dead bodies were sealed separately and were sent for post-mortem. The I. O. inspected place of occurrence and prepared site plan (Ext. Ka-13 ). Thereafter, the I. O. interrogated Bhanu Prakash (P. W. 1), Manik Lal (P. W. 2), Gajadhar (P. W. 3) and others. He also inspected the torches of witnesses Bhanu Prakash, Ram Pratap, Manik Lal, Mahabir and Mool Chandra, found them in working order and gave them in supurdagi of their respective owners. The I. O. also took into possession bloodstained and simple earth from the place where dead bodies of Km. Meera and Atma Ram were lying and prepared separate recovery memos. Six empty cartridges of 12 bore gun and 6 empty cartridges of rifle were recovered from the spot, besides two police caps, one torch, one kerchief and one pair of rain shoe. ( 5 ) ON 6-2-1978 the I. O. Sri Parashu Ram (P. W. 4) got information through informer that residents of village Gotala had apprehended Beta Lal appellant, who had gun shot injuries. Some persons of village Ghasara, where dacoity had taken place, also reached village Gotala and identified appellant Beta Lal as one of the dacoits, who was shot at and was taken away by other dacoits. The I. O. , accordingly, arrested Beta Lal and brought him to police station. ( 6 ) INJURED Raja Ram was brought to Primary Health Centre, Achhalda, where he was medically examined on 6-2-1978 at 8 a. m. by Dr. The I. O. , accordingly, arrested Beta Lal and brought him to police station. ( 6 ) INJURED Raja Ram was brought to Primary Health Centre, Achhalda, where he was medically examined on 6-2-1978 at 8 a. m. by Dr. P. Chaturvedi, who found two lacerated wounds and one punctured wound and prepared injury report (Ext. Ka-17 ). Subsequently, Raja Ram died in the hospital. Inquest of the dead body of Raja Ram was conducted on 7-2-1978 by Raghubir Sahai, S. I. (P. W. 7), who prepared inquest report (Ext. Ka-22) and other relevant papers and sent dead body for post-mortem. ( 7 ) THE autopsy on the dead bodies of Km. Meera, Atma Ram and Raja Ram were conducted on 7-2-1978 between 1. 30 p. m. and 3. 40 p. m. by Dr. P. K. Sharma (P. W. 5), who found lacerated and gun shot wounds on their persons and cause of death was shock and haemorrhage, as a result of ante-mortem injuries. The doctor prepared post-mortem reports (Ext. Ka-18, Ext. Ka-19 and Ka-20 ). ( 8 ) APPELLANT Shyam Singh was apprehended on 23-2-1978 at about 6 a. m. at village Pilkhana by Sub-Inspector Bharat Singh (P. W. 9) and was made baparda on the spot. He was brought to police station in baparda condition, the endorsement of which was made at G. D. report (Ext. Ka-30) and he was sent to jail in baparda condition on 24-7-1978, through Constable Ram Pal Sharma (P. W. 12), the endorsement of which was made at G. D. report (Ext. Ka-33 ). The other accused of the case namely Rameshwar, Suresh Chandra, Parashu Ram, Soney Lal and Amar Singh were apprehended on 23-2-1978, 26-2-1978, 13-3-1978 and 24-3-1978. They were made baparda on the spot and were escorted to jail in baparda condition. ( 9 ) THE identification of appellant Shyam Singh along with other co-accused Rameshwar, Suresh Chandra, Parashu Ram, Soney Lal and Amar Singh was conducted on 30-3-1978 by Sri Data Deen Pasi (P. W. 6) the then S. D. M. Appellant Shyam Singh was correctly identified by Bhanu Prakash (P. W. 1), Manik Lal (P. W. 2) and Gajadhar (P. W. 3 ). The other accused were also identified. Sri Data Deen (P. W. 6), the then S. D. M. prepared identification memo (Ext. Ka-21 ). The other accused were also identified. Sri Data Deen (P. W. 6), the then S. D. M. prepared identification memo (Ext. Ka-21 ). ( 10 ) ON receipt of identification memo and on completion of investigation, the I. O. submitted charge sheet (Ext. Ka-16) against the appellants Beta Lal, Shyam Singh and other co-accused namely Suresh Chandra Rameshwar, Parashu Ram, Amar Singh and Soney Lal. ( 11 ) COGNIZANCE of the case was taken by the Magistrate, who committed the case to the Court of Session. ( 12 ) THE appellants along with other co-accused were charged with the offences punishable under Sections 147, 398, 307 read with 149 and 302 read with 149, I. P. C. In the alternative they were further charged with the offence punishable under Section 396, I. P. C. The appellants and other co-accused pleaded not guilty and contended that they were falsely implicated on account of enmity with the police. ( 13 ) THE prosecution in support of its case examined Bhanu Prakash (P. W. 1), Manik Lal (P. W. 2), Gajadhar (P. W. 3) as witnesses of fact, besides Sri Parashu Ram Yadav I. O. (P. W. 4), Dr. P. K. Sharma (P. W. 5), Sri Data Deen S. D. M. /executive Magistrate (P. W. 6), Sub-Inspector Raghubir Sahai (P. W. 7), Head Constable Sarju (P. W. 8), Sub-Inspector Bharat Singh (P. W. 9), Sub-Inspector Ram Autar (P. W. 10), Sub-Inspector Jagdish Singh Chauhan (P. W. 11), Constable Ram Pal Sharma (P. W. 12) and Head Constable Sri Ram (P. W. 13 ). The appellant and other co-accused did not adduce any evidence. ( 14 ) LEARNED Sessions Judge on considering the evidence of the prosecution held that the prosecution fully established beyond reasonable doubt that the accused Beta Lal, Shyam Singh, Rameshwar, Soney Lal, Parashu Ram along with their associates reached the house of Bhanu Prakash (P. W. 1) having made preparation for committing dacoity armed with deadly weapons and they attempted to commit dacoity at the house of Bhanu Prakash (P. W. 1) and while conjointly committing dacoity, they also committed murder of Km. Meera, Atma Ram and Raja Ram. Therefore, offence punishable under Section 396, I. P. C. was fully established against them. Meera, Atma Ram and Raja Ram. Therefore, offence punishable under Section 396, I. P. C. was fully established against them. With these findings he convicted the appellants Beta Lal and Shyam Singh along with co-accused Rameshwar , Soney Lal, Parashu Ram under Section 396, I. P. C. and sentenced them to imprisonment for life. However, accused Suresh Chandra and Amar Singh were acquitted. ( 15 ) AGGRIEVED with their above conviction and sentence Shyam Singh filed Criminal Appeal No. 1792 of 1980 and Beta Lal filed Criminal Appeal No. 1794 of 1980. Co-accused Ramshwar and Soney Lal had filed Criminal Appeal No. 1743 of 1980 and co-accused Parashu Ram had filed Criminal Appeal No. 1784 of 1980. However, Criminal Appeal Nos. 1743 of 1980 and 1684 of 1980 stood abated, vide order dated 20-8-1997 of this Court on account of death of above appellants Rameshwar, Soney Lal and Parashu Ram. ( 16 ) APPELLANT Shyam Singh absconded during pendency of appeal. Non-bailable warrants were issued against him, which could not be executed. The Chief Judicial Magistrate was directed to take all necessary steps to secure attendance of the said appellant. He, accordingly, issued process under Sections 82, 83, C. P. C. , but it could not be executed and were returned unserved with an endorsement that the above appellant had sold his movable and immovable properties and left the place 10 years ago. Sri H. C. Tiwari, Advocate was appointed as Amicus-curie to argue the appeal of appellant Shyam Singh. ( 17 ) BOTH the appeals are directed against the same judgment and order. Therefore, with the consent of parties learned counsel both the appeals were heard together and are being disposed of by a common judgment. ( 18 ) WE have heard Sri G. P. Dixit, learned counsel for the appellant Beta Lal and Sri H. C. Tiwari, Amicus-curie on behalf of appellant Shyam Singh and have gone through the evidence on record. ( 19 ) THE case of the prosecution was that about 8-9 dacoits including the appellants armed with guns and rifles came to the house of Bhanu Prakash (P. W. 1) and attempted to commit dacoity. Due to pressure mounted by Bhanu Prakash (P. W. 1) and other villagers they could not succeed in their above attempt, but during course of attempting to commit dacoity they caused death of Km. Due to pressure mounted by Bhanu Prakash (P. W. 1) and other villagers they could not succeed in their above attempt, but during course of attempting to commit dacoity they caused death of Km. Meera, Atma Ram and Raja Ram deceased. The appellants have not disputed the factum of attempt to commit the dacoity on the night of 5-2-1978 at about 11 p. m. in the house of Bhanu Prakash (P. W. 1) and death of Km. Meera, Atma Ram and Raja Ram in the said occurrence. Bhanu Prakash (P. W. 1) had given details of attempt to commit dacoity, causing fire arm injuries to Km. Meera, Atma Ram and Raja Ram and their death. Manik Lal (P. W. 2) and Gajadhar (P. W. 3) had also stated about the above fact of attempt to commit dacoity, firing by dacoits and death of above three persons due to gun shot injuries caused by dacoits. No cross-examination was made from the above witnesses on the above point. The oral testimony of above witnesses is also corroborated by the F. I. R. of the occurrence promptly lodged in the same night at 4 a. m. , the injury report of Raja Ram prepared by Dr. Chaturvedi at 8 a. m. on next morning as well as presence of dead bodies of Km. Meera and Atma Ram on the spot and that of Raja Ram in the hospital. The medical evidence of Dr. P. K. Sharma (P. W. 5) also corroborated the oral evidence of above witnesses that three persons died on account of gun shot injuries sustained by them on the night of occurrence between 11 and 12 night. In this way, the prosecution has successfully proved the factum of attempt to commit dacoity in the night of occurrence at the house of the Bhanu Prakash (P. W. 1) and death of Km. Meera, Atma Ram and Raja Ram in the said occurrence. ( 20 ) THE next question, which arises for determination is whether appellant Beta Lal and Shyam Singh participated in the above attempt to commit dacoity and murder of three persons during the course of said attempt to commit dacoity. Meera, Atma Ram and Raja Ram in the said occurrence. ( 20 ) THE next question, which arises for determination is whether appellant Beta Lal and Shyam Singh participated in the above attempt to commit dacoity and murder of three persons during the course of said attempt to commit dacoity. ( 21 ) SRI G. P. Dixit, learned counsel for the appellant Beta Lal contended that there is no evidence against appellant Beta Lal to connect him with the case or to show his involvement in the attempt to commit dacoity and murder of three persons. ( 22 ) THE evidence against Beta Lal appellant was that during course of commission of the offence he was on the roof of the house of Ram Chander, which was adjacent to the house of Bhanu Prakash (P. W. 1 ). While Bhanu Prakash (P. W. 1) and other villagers fired on dacoits one of the dacoits sustained gun shot injuries and fell down in the angan of Rajendra, but he was taken away by other dacoits. That on the next morning i. e. on 6-2-1978, the persons of village Gotala apprehended appellants Beta Lal, who had sustained gun shot injuries. In the meantime, persons of the village Ghasara, where dacoity had taken place in the preceding night, also came there and identified appellant Beta Lal as one of the dacoits, who participated in the attempt to commit the dacoity and sustained gun shot injuries. On the above identification he was apprehended by the I. O. Parashu Ram Yadav (P. W. 4 ). The ocular witnesses Bhanu Prakash (P. W. 1), Manik Lal (P. W. 2) and Gajadhar (P. W. 3) stated in their evidence that they had seen Beta Lal in the dacoity and identified him in the Court at the time of their evidence. ( 23 ) THE above novel mode of identification of appellant Beta Lal adopted by the I. O. is not recognised by Section 9 of Indian Evidence Act, as he was not made baparda after his arrest and was not put up for identification in an identification parade. Therefore, the above alleged evidence of identification is not acceptable. ( 23 ) THE above novel mode of identification of appellant Beta Lal adopted by the I. O. is not recognised by Section 9 of Indian Evidence Act, as he was not made baparda after his arrest and was not put up for identification in an identification parade. Therefore, the above alleged evidence of identification is not acceptable. ( 24 ) NO doubt, Bhanu Prakash (P. W. 1), Manik Lal (P. W. 2) and Gajadhar (P. W. 3) stated that Beta Lal was the same dacoit, who sustained injuries in the occurrence and I. O. , Parashu Ram (P. W. 4) also stated that Beta Lal appellant was having gun shot injuries when he was apprehended. But surprisingly enough no medical examination of Beta Lal was got done to show that he had sustained gun shot injuries. There is also no evidence to prove that the injuries, if any, sustained by Beta Lal were caused by fire arm and that too in the night of occurrence. There is no evidence regarding nature, seat and duration of alleged injuries of Beta Lal. Therefore, presence of gun shot injuries on his person was also not proved. ( 25 ) NO doubt, Bhanu Prakash (P. W. 1), Manik Lal (P. W. 2) and Gajadhar (P. W. 3) had recognised the above appellant Beta Lal in the Court at the time of their evidence recorded on 31-7-1979 and 1-8-1979 but their above identification after about 18 months of the occurrence without identifying him earlier in any test identification parade is of no value and does not establish his identity. ( 26 ) BHANU Prakash (P. W. 1) admitted in his cross-examination that Beta Lal was youngest amongst other accused, but he had not mentioned this fact in his F. I. R. that the dacoit, who sustained injuries was youngest of all dacoits. No other distinguishing feature of Beta Lal was given in the F. I. R. In these circumstances, there is no evidence on record to fix identity of Beta Lal appellant and his participation in the offence. ( 27 ) THE evidence against appellant Shyam Singh was that of identification only. It is alleged that he was recognised by his face by the witnesses on the spot in the light of torches and was correctly identified by three witnesses Bhanu Prakash, Manik Lal and Gajadhar (P. Ws. ( 27 ) THE evidence against appellant Shyam Singh was that of identification only. It is alleged that he was recognised by his face by the witnesses on the spot in the light of torches and was correctly identified by three witnesses Bhanu Prakash, Manik Lal and Gajadhar (P. Ws. 1 to 3) without any mistake in the identification parade conducted on 30-3-1978. Therefore, it is to be considered whether there was sufficient light on the spot, the witnesses had sufficient opportunity to recognise the appellant and they correctly identified him in the test identification parade as well as in the Court. ( 28 ) IN the F. I. R. it was mentioned that dacoits were recognised in the light of torches. The complainant Bhanu Prakash (P. W. 1) and other witness possessed torches. In his evidence Bhanu Prakash (P. W. 1) stated that he recognised the faces of dacoits in the torches possessed by him, the other witnesses as well as dacoits. However, he admitted in his cross-examination that he had not disclosed before the I. O. the fact that dacoits were also having torches. Manik Lal (P. W. 2) stated that on hearing alarm he proceeded to the spot with torch and dacoits were also having torches, which they were flashing. The dacoits were recognised in the light of above torches. Gajadhar (P. W. 3) stated that Manik Lal (P. W. 2) and Mulle had torches and dacoits had also torches with them, which they were flashing. Its light was falling upon faces of other dacoits. The fact that dacoits were also having torches is missing in the statement of above witnesses recorded under Section 161, Cr. P. C. Therefore, possession of torches with dacoits was a subsequent development and cannot be safely relied upon. ( 29 ) ACCORDING to Bhanu Prakash (P. W. 1), he was on his roof and saw firing by dacoits. He took position and also started firing. In these circumstances, witness must have taken such precaution, so that he could not be seen by the dacoits, otherwise he would have been shot at. Therefore, his contention that he was flashing on the dacoits is also not reliable. ( 30 ) THE remaining two witnesses Manik Lal and Gajadhar (P. Ws. He took position and also started firing. In these circumstances, witness must have taken such precaution, so that he could not be seen by the dacoits, otherwise he would have been shot at. Therefore, his contention that he was flashing on the dacoits is also not reliable. ( 30 ) THE remaining two witnesses Manik Lal and Gajadhar (P. Ws. 2 and 3) admitted that on coming near the house of Bhanu Prakash, they hid themselves beside chabutara, so that they could not be detected by the dacoits. If they were hiding themselves, it was also not expected from them that they would flash torches upon the faces of dacoits to disclose the place of their hiding. In these circumstances, the presence of light alleged by the prosecution is not worth acceptable. ( 31 ) AS mentioned above Bhanu Prakash, Manik Lal and Gajadhar (P. Ws. 1, 2 and 3) had taken all precautions to hide themselves so that they could not be seen by the dacoits. Firing was going on from the side of dacoits. In these circumstances, the witnesses were so terrified that it was not expected from them to concentrate their attention on the faces of the dacoits. Therefore, the witnesses had no sufficient opportunity to recognise the faces of dacoits. ( 32 ) THERE is yet another circumstance in this case, which minimise the value of identification. The appellant Shyam Singh was apprehended on 23-2-1978 and was sent to jail on 24-2-1978. His identification parade was conducted on 30-3-1978 i. e. after 35 days of arrest and after 52 days of the occurrence. In the case of Satrughana alias Satrughana Parida v. State of Orissa, 1995 (Supp) 4 SCC 448, appellant Ravin Kandy was arrested on 22/11/1982. The identification parade was held on 10/12/1982 i. e. more than 15 days after the arrest. The prosecution had not disclosed any reason in not holding the identification parade promptly. The Apex Court held that unless there is good reason for delay the value regarding the evidence of identification gets adversely affected. The identification parade was held on 10/12/1982 i. e. more than 15 days after the arrest. The prosecution had not disclosed any reason in not holding the identification parade promptly. The Apex Court held that unless there is good reason for delay the value regarding the evidence of identification gets adversely affected. This dilution to the evidentiary value of the identification by the witnesses who claimed to have seen the accused on the night of the occurrence almost one and half month back, who did not in their statement before the police or in the first information report reveal any special features for the identification, is a matter which weighs against the prosecution. It must be remembered that the accused persons are required to be produced before the Court latest within 15 days of their arrest and therefore, it would be reasonable to infer that they were so produced. There is nothing on record to show that the prosecution had taken care to ensure that their identity was not revealed when they were taken to the Court and produced as required by law. In these circumstances when the prosecution witnesses had admitted in their oral statement that they had not noticed any special identifying features, it becomes unsafe to place implicit reliance on the evidence regarding identification enacting from the proceedings at the test identification parade. ( 33 ) IN the instant case the witnesses neither in their statements before the I. O. nor in the first information report reveal any special features of the appellant Shyam Singh for the identification. The identification parade was conducted after 35 days of the arrest of the appellant and in all probability the appellant must have been produced twice before the Court for remand to judicial custody. There is no link evidence in this case to show that prosecution had taken all precautions and care to ensure that identity of the appellant was not revealed when he was taken to the Court and produced as required by law. In view of delay in conducting the identification, the possibility that the memory of witnesses regarding face of the appellant would have diminished, cannot be easily ruled out. The Cumulative effect of above facts and circumstances of the case is that no implicit reliance can be placed on the identification made by the witnesses at the test identification parade. In view of delay in conducting the identification, the possibility that the memory of witnesses regarding face of the appellant would have diminished, cannot be easily ruled out. The Cumulative effect of above facts and circumstances of the case is that no implicit reliance can be placed on the identification made by the witnesses at the test identification parade. Therefore, appellant Shyam Singh is also entitled to benefit of doubt. ( 34 ) IN view of our above discussions and observations we are of the view that there was no sufficient evidence on record to convict the appellant Beta Lal and Shyam Singh. The appeal thus succeeds. ( 35 ) CRIMINAL Appeal No. 1792 of 1980 preferred by Shyam Singh and Criminal Appeal No. 1794 of 1980 preferred by Beta Lal are allowed. The conviction and sentence of above appellants under Section 396, I. P. C. are set aside and they are acquitted of the said offence. ( 36 ) BOTH the appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Appeal allowed.