V. K. CHATURVEDI, J. Masalti has preferred this appeal against judgment and order dated 13-4-1982 passed by Special Sessions Judge, Jhansi in S. T. No. 175 of 1980 convicting the appellant under Section 396 IPC and sentencing him to undergo ten years R. I. 2. Heard Sri S. P. S. Rathi holding brief of Sri A. R. B. Kher and Sri A. K. Ojha, learned Counsel for the appellant and learned A. G. A. 3. The lower Court record was weeded out, thereafter, Counsel for the appellant was asked to supply the copy of the statement of witnesses identification memo and he filed the same. The Court was also taken certified copy of the identification memo of the appellant on record. 4. It is contended that the appellant was put up for identification after about 57 days of his arrest and any special feature was neither given in the First Information Report nor in the statements before the Court, as such, no reliance can be placed on such identification. 5. The prosecution story, in brief, is that in the night intervening 22/23 April, 1980 there was a marriage ceremony of Sukh Lal, brother of the informant, P. W. I, Moti Lal resident of village Medki in police station Mauranipur. The complainant Moti Lal and other members of his family were sleeping. Moti Lal along with his wife was sleeping in a room of his house. His uncle Pyare Lal was in his Khaliyan near his house. It is alleged that the accuse and 6-7 other dacoits climbed the roof of the house of the complainant from its back and entered it and also opened its door from inside. Consequently 2-4 dacoits entered in the house from outside. They belaboured him and his wife to Court yard where the patromax was burning. They looted the ornaments of Smt. Girija, sister of the complainant and his Bua Smt. Shanti and those of his another sister who came from village. Thereafter, they went inside the room of his uncle Laxman whom they belaboured and whose belongings were also looted. The accused miscreants were armed with axes, country made pistols, pharsas, lathis, bhalas and guns. They were also holding torches with them. They frequently flashed their torches. Thereafter, they went inside the room of his uncle Laxman whom they belaboured and whose belongings were also looted. The accused miscreants were armed with axes, country made pistols, pharsas, lathis, bhalas and guns. They were also holding torches with them. They frequently flashed their torches. Finding an opportunity the informants wife went out and raised alarm hearing which Hari Das, Lachhi who since died, Gore Lal grand-father of the informant and certain others came to the house of the informant. While going away with the booty, the miscreants caused pistol shot injuries to Gore Lal and flashed their torches. The witnesses saw and recognized the accused and other associates in the light of torches as well as in the light of petromax in the course of dacoity. 6. After the incident, the informant Moti Lal got a written report by Ramesh Prasad and took it to the police station Mauranipur Gorelal, Rajoo, Laxman, Moti Lal, Smt. Girja, Kashiram, Smt. Imalia Wali and Smt. Parvati, who received injuries in the course of dacoity, were medically examined. Their injury reports are Ext. Ka. 20 to Ka. 27. Gorelal, injured, after giving medical aid in Mauranipur hospital, was subsequently taken in the District Hospital, Jhansi where he ultimately succumbed to his injuries 4-5 days after the incident. 7. On the basis of the written report, Ext. Ka. 1, a chick report Ext. Ka. 6 was prepared and the case was registered in the general diary at serial No. 5, an extract of which is Ext. Ka. 7, Fard Supurdiginama of torches, Ext. Ka. 9, site plan Ext. Ka. 12 fard regarding taking into custody 25 pallets material Ext. 5. Panchayatnama regarding the dead body of Gorelal, is Ext. Ka. 15 post-mortem report is Ext. Ka. 19. 8. On 31-8-1980 the other accused Mohan was arrested. On his interrogation, the complicity of the appellant came into light and on 1-9-1980 he was arrested by P. W. 8 Ram Khilawan Singh near the railway station, Mauranipur at about 2. 30 PM. He was made Baparda then and there and was taken to the police station where he was lodged and entry to the effect was made in the general diary, an extract of which is Ext. Ka-8. Thereafter, he was taken Baparda by the constables Bachcha Lal and Param Lal to the district jail. 30 PM. He was made Baparda then and there and was taken to the police station where he was lodged and entry to the effect was made in the general diary, an extract of which is Ext. Ka-8. Thereafter, he was taken Baparda by the constables Bachcha Lal and Param Lal to the district jail. An entry to that effect was made in the general diary, an extract of which is Ext. Ka-4. He was put up for identification on 27-10-1980 in the test parade conducted by Sub-Divisional, Magistrate, Kunwar Vikram Singh, P. W. 5-Moti Lal, Laxman and Hari Das correctly identified the appellant in the identification, parade. Identification memo is Ext. Ka-5. 9. The charges under Section 396. IPC was framed against the accused-appellant on 23-5-1991. To prove its case prosecution examined P. W. 1, Motial Lal, P. W. 2 Hari Das, P. W. 3 Laxman, P. W 4 constable Bachcha Ram, P. W. 5 Kunwar Vikram Singh Sub-Divisional Magistrate who conducted the identification parade, P. W. 6 Jagdish Singh Avasthi, head moharrir who proved the general diary, P. W. 7 Ghanshyam Das Mishra, the formal witness of giving the torch in the custody of informant and other witnesses and P. W. 8 Ram Khilawan Singh, the Investigating Officer and also arresting officer of the accused-appellant. 10. The accused-appellant pleaded not guilty and claimed to be tried and has stated that all the allegations leveled against him is wholly wrong and incorrect. He has also stated that his Sasural (in- laws house) is a distance of 2 kilometer from the village where the alleged dacoity took place and he frequently use of to visit the in-laws house and village of dacoity. In his defence he examined J. P. Tiwari, Assistant Jailer, Jhansi as D. W. I. . After considering the evidence of above-referred prosecution witnesses, trial Court found that the prosecution is used to prove its case and after discussing the same, convicted the appellant, referred to above. 11. As regard to the factum of dacoity is concerned in the house of P. W. 1, Moti Lal, it is conclusively proved by these witnesses, that dacoity was committed in the house of informant in which four persons received injuries and one person lost his life subsequently but Court has to see whether there are sufficient evidence to convict the appellant only on the identification evidence. 12. 12. In the First Information Report, Ext. Ka-1, and chick report, Ext. Ka-6, P. W. 1 Moti Lal has nowhere mentioned about any special features of the miscreants who, he saw during the dacoity even the names were not given in the First Information Report. In his statement before the trial Court, as P. W. 1, he has corroborated the factum of dacoity and also stated that the light of petromax and torches, which the miscreants were fleshing, he recognized the face of dacoits and also proved the First Information Report as Ext. Ka-1. He also stated that after the dacoity he identified one dacoit in the district jail and in between he had never seen any other dacoits. In his cross-examination he has admitted that he had not given any special features about any of the miscreants in the First Information Report. He has also not given any sign of small pocks mark on the face of the accused and when he saw the accused in the Court he found that there are several signs of small pocks on the face. He has also stated in his cross- examination that the accused had not concealed his face by Dhanta. When a question was put to him that to how many times he had gone to district jail to identify the miscreants, he gave a reply that five or six times. He has denied the suggestions that in-laws of the appellant is residing to 2-3 kilometer from his village. 13. P. W. 2, Hari Das, is also a witness of dacoity who corroborated the statement of P. W. 1. He has also not given any special features about the dacoits in his statement. P. W. 3, Laxman, another witness of dacoity and identifying witness, has also repeated the same version as was given by P. W. 1 and P. W. 2 and staled that he identified the accused-appellant in jail and also identified in the Court and in between he had never seen, the dacoits. He has also denied the suggestion that in the jail, where the witnesses were sitting before identification parade, there was ample opportunity for the witnesses to see the faces of the dacoits who were to be put up for identification parade. He has also denied the suggestion that in the jail, where the witnesses were sitting before identification parade, there was ample opportunity for the witnesses to see the faces of the dacoits who were to be put up for identification parade. P. W. 4, constable Bachcha Ram, who slated that on 2-9-1980 he along with other constables took the accused from the police lock up in Baparda and to the district jail, Jhansi where accused was admitted to jail. P. W. 5. Kunwar Vikram Singh, S. D. M. , in his cross-examination, has admitted that in the identification memo, coloum No. 10, he has not entered any special features. He has also admitted that in coloum No. 4 he has not mentioned any special features about the spot of small pocks. P. W. 6, constable Jagdish Singh Avasthi proved the general diary, Ext. Ka-6. P. W. 7 Ghanshyam Das Mishra, the formal witness of giving torches in the custody of villagers including the informant. P. W. 8, Ram Khilawan Singh, who proved the site plan Ext. Ka-4 to 25 and the fard memo, Ext. 13 and fard supurdaginama of torches, Ext. Ka 9. He stated that on 1- 9-1980 he arrested the accused-appellant near the railway station at about 2. 30 PM and interrogated. He was kept Baparda and brought to the police station by G. D. No. 20 at 6. 40 PM. After receiving the identification result on 30-10-1980 he submitted the chargesheet, Ext. Ka-14. In his cross-examination he admitted that no witness had told about any special features of the miscreants in his statement under Section 161, Cr. P. C. 14. The accused-appellant, in his statement before the identification parade, specifically stated that he was kept for about thee days in the police lock up where he was shown to the witnesses. 15. It is admitted case that the accused-appellant was arrested, on 1-9-1980 at 2. 30 PM near the railway station, Mauranipur from where he was brought to the police station and was sent to jail on the next day, i. e. , 2-9-1980 and was put up for identification on 27-10-1980 i. e. , after about 57 days and the result of identification parade is about 65%, after six months from the date of incident. The eye witnesses, in their statements before the Investigating Officer or in the First Information Report, has not mentioned any special features of the appellant in the identification. The identification parade was conducted after about 57 days and in all probabilities the appellant must have been produced four times before the Court for remand to the judicial custody. No link evidence was produced by the prosecution to show that the prosecution had taken all precaution and care to ensure that identification of this appellant was not revealed when he was taken to the Court and produced as required by law. 16. In view of the delay in conducting the identification, the possibility is that the memory of the witnesses regarding the special features of the appellant would have diminished, cannot be easily ruled out. It is to be noted here one more, fact that special distinctive visible mark of small pocks by P. W. 5 in the identification memo, Ext. Ka-5 were shown but those mark and special features was not mentioned in the First Information Report nor were stated by the witnesses during the statement under Section 161, Cr. P. C. The possibility of showing this accused appellant in the police lock up before the identification parade held in district Jail cannot be ruled out. The accused-appellant was produced before the Court on 2-9-1980, 29-9-1980, 13-10-1980 and 27-10-1980 and the prosecution had not led any evidence to the effect that while taking the accused-appellant from Jail to the Court and back to the Jail from the Court, the accused-appellant was kept Baparda and he was not allowed to be seen by any of the witnesses during the remand period. 17. The Apex Court in a case of Satrughana @ Satrughana Parida and others v. State of Orissa, reported in 1999 (39) ACC 645 (SC) held that in a case where the identification was held after 15 days of arrest, the prosecution had not disclosed any reason for not holding the Identification Parade promptly unless there is good reason for delay. The value regarding the identification gets adversely affected. The value regarding the 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 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 emanating from the proceedings at the test identification parade. 18. In view of the above discussions and law sited above and to the fact that there is no link evidence in this case to show that full precautions were taken when the accused was produced before the Court on four dates for remand and he was made Bapardah during this period as the prosecution has not led any evidence on this point and the identification Parade was held after 57 days. The accused-appellant has stated before the Identifying Magistrate, as well as in his statements under Section 313, Cr. P. C. that he was shown to witnesses in lock up and he was known to villagers, as his father-in-law is running a shop in a penth in the village of dacoity, that is why, the witnesses have identified him in the identification parade after about six months from the date of incident and 57 days from his arrest. The prosecution had not disclosed any reason for not holding the identification parade promptly. The cumulative effect of above fact 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, the appellant Masalti is entitled to benefit of doubt. 19. The prosecution had not disclosed any reason for not holding the identification parade promptly. The cumulative effect of above fact 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, the appellant Masalti is entitled to benefit of doubt. 19. In view of the above discussions and the observations I am of the view that there is no sufficient evidence on record to convict the appellant Masalti. 20. The appeal is, thus, allowed. The conviction and sentence of the appellant Masalti under Section 396 IPC, referred to above, are set aside. He is acquitted of the said charges. The appellant is in jail. He shall be released forthwith, if not required in any other case. Appeal allowed. .