Judgment Braj Nandan Prasad Singh, J. 1. Successive dacoities were committed in a number of houses including that of Mahendra Yadav when miscreants who were 8-10 in number, having scaled over the tiled roof of the house of Mahendra Yadav, jumped in the courtyard, gained access in the inner apartmentof the house, scuffled with house inmates and haying shot dead Ram Pravesh Yadav removed house belongings which includes wearing apparels, ornaments and cash, and decamped with the booty. 2. It was Mahendra Yadav who took recourse to public authority and set the Police in motion. After statement of Mahendra Yadav was recorded. Police came in action, and investigation followed, in course of which, Police collected evidence, visited different places of occurrence, prepared inquest report over the dead body of Ram Pravesh Yadav and recorded statement of witnesses. During courses of investigation, houses of Sudhir Kahar and appellant were searched when some articles alleged to be part of booty were, seized by one Shri Ram Ayodhya Singh, Assistant Sub-Inspector of Police, who also not the test identification parade of articles held in presence of Block Development Officer, Guraru and on conclusion of investigation laid charge sheet before the Court. 3. In the eventual trial that followed, State examined altogether ten witnesses, who were house inmates, where dacoities were committed, some other willnesses, who turned volte face to the State, seizure list, witnesses who too turned hostile, Block Development Officer who conducted test identification parade and also the Police Officer who registered case and carried Investigation. 4. Though Police case was instituted against three persons, it seems that while charge sheet was submitted against appellant alone, investigation remained pending against rest persons the appellant alone as such was put on trial. Defence of the appellant was that of total innocence and he ascribed his false implication for no good reasons. However, the appellant had hot chosen to examine any witness on his behalf. The trial Court while negativing plea of innocence of the appellant while acquitted him of the charges u/s. 396 of the Indian Penal Code (Indian Penal Code, 1860 ) for insufficiency of evidence, recorded finding of guilt u/s. 412 of the Indian Penal Code, 1860 and sentenced him to suffer rigorous imprisonment for a term of ten years. 5. The trial Court while negativing plea of innocence of the appellant while acquitted him of the charges u/s. 396 of the Indian Penal Code (Indian Penal Code, 1860 ) for insufficiency of evidence, recorded finding of guilt u/s. 412 of the Indian Penal Code, 1860 and sentenced him to suffer rigorous imprisonment for a term of ten years. 5. Though narrations made by the witnesses have been fairly spelt out in the judgment of the Court below, I wish to recapitulate them with brevity to appreciate the contentions raised. Those who turned volte face to the State were Bhun Yadav (PW.1), Krishna Mohan Yadav (PW2), Karu Mahto (PW3), and Girja Yadav (PW6). Though some of the stated about commission of dacoity in the house of Ram Pravesh Yadav in the night of the incident, they were not conversant with the details of the occurrence and also identification of the miscreants. Both Anhachh Mochi (PW 5) and Shankar Paswan (PW 6) negatived recovery of incriminating articles in their presence from the house of the appellant and though they acknowledged their signatures on the seizure list, stated to have appended their signatures on a plain piece of paper at the Police Station. 6. Both Mahendra Yadav (PW 7) and Saminder Kumar (PW 8) stated about factum of commission of dacoity in their house in the night of the incident. They denied identification of the miscreants even though Mahendra Yadav (PW7) was none else but the maker of the fardbeyan who had claimed identification of some of the miscreants in the first information report. His attention too was not drawn by the State. 7. Be that as it may, witnesses claimed to have participated in the test identification parade held in the premises of Block Development Officer, Guraru when they allegedly identified wearing apparels allegedly seized from the house of the appellants. Since conviction of the appellant inter alia is based on recovery of a part of body allegedly made from the house of the appellant, this part of the prosecution case needs closer scrutiny. If the endorsement made by the Block Development Officer in the test identification parade is to be given any credence, frocks, wearing apparel for baby which are item No. (4) in the chart were identified both by Mahendra Yadav (PW 7) and Saminder Kumar (PW 8). If the endorsement made by the Block Development Officer in the test identification parade is to be given any credence, frocks, wearing apparel for baby which are item No. (4) in the chart were identified both by Mahendra Yadav (PW 7) and Saminder Kumar (PW 8). My attention has been has been drawn by the learned Counsel for the appellant to assertions made by Mahendra Yadav (PW 7) about he claiming identification of sari pant during test identification parade, though he could not recapitulate the details of the articles which were identified by him during the test identification parade. The case of Saminder Yadav (PW 8) was not better than that of Mahendra Yadav (PW 7). He too did not claim identification of any of the miscreants. Without specifying details, this witness too states about identification of some of the articles during test identification parade. He could not recapitulate the details of those articles which were identified by him during test identification parade. 8. Conviction of the appellant on strength of recovery of part of booty allegedly made from his house and their alleged identification during test identification parade by PWs. 7 and 8 suffers from another infirmity. Neither in the first information report, which was the earliest version of Mahendra Yadav, description of the household articles were ever furnished, nor even during investigation such list with explicit description of articles which were removed from the house, were however, furnished before the Investigating Officer. My attention has also been drawn by the learned Counsel for the appellant towards statement of some witnesses made during investigation. It is urged on these premises that even the female house inmates had not stated description of household articles including that of wearing apparel with their distinct marks which were removed from the house. There is no gainsaying the fact which was also admitted by PWs 7 and 8 that such household articles which are shown to have been identified by them, were available in the in market and were of common use. 9. There is no gainsaying the fact which was also admitted by PWs 7 and 8 that such household articles which are shown to have been identified by them, were available in the in market and were of common use. 9. Though from evidences placed on the record, it seems that though recoveries of these articles were affected after one or two days of the incident, test identification parade was held after throe months and there appears to be no valid reason for withholding of test identification parade of articles for such a long period, and that apart, Shri Ram Ayodhya Singh who effected seizure of articles from house of the appellants was not examined at trial. I am afraid that on such evidence, which are not free from blemishes finding of guilt recorded by the Court below can be sustained. 10. In the result, findings recorded by the Court below recording verdict of guilt and sentencing the appellant is set aside and he is acquitted of the charges. Since appellant happens to be in custody, it is directed that he be set free forthwith, if not wanted in any other case. The appeal accordingly succeeds.