R. P. YADAV, J. This Criminal Appeal is directed against the judgment and order dated 19th October, 1981 passed by the VI Additional Sessions Judge, Aligarh in Sessions Trial No. 174 of 1980 convicting the appellants Ram Swarup, Yad Ram, Nawab Singh alias Nabba and Chheda Lal under Section 396 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life. 2. During the pendency of this appeal, two appellants namely Ram Swarup and Chheda Lal died and their appeal has abated. 3. It is the prosecution case that the complainant Shri Balbir Singh PW 2 has a double storied house in village Chitarsi which is situated within the circle of P. S. Gangiri at a distance of about 5 Kms. The occurrence in question is said to have taken place in the moonlit night of 7/8 August, 1979 at about 1. 30 a. m. when complainant Balbir Singh-PW 2 his brothers Inder Singh and Dharam Singh, who were killed in this incident, were sleeping on the roof of the house, whereas, the other members of his family including his mother Smt. Chameli- wife Verma Devi, Smt. Abhilash w/o Shri Dharam Singh and Prakashi were sleeping not the ground floor of the house. It is alleged that at about 1. 30 a. m. about 8 or 9 miscreants armed with gun, Katta, Ballam and lathies entered his house by scaling down the wall and opened the main door. They started ransacking the house. Some of the miscreants went upstairs. One of them shot at Shri Inder Singh who sustained injuries and instantaneously died. The complainant Balbir Singh and his brother Dharam Singh caught hold of one of the miscreants who in an attempt to get rid of their hold fired at Shri Dharam Singh, who sustained injuries. The complainant as well as the other members of the family raised alarm, whereupon, his brother Jant Singh PW 3 Bhagwan Singh, Ranvir and others arrived there. Complainant and his brother were having torches. The miscreants were also having torches which they had been flashing during the course of the dacoity. His brother Shri Jant Singh set fire to the heap of patel kept near the house of Kitab Singh, which emanated sufficient light. Complainant and his brother were having torches. The miscreants were also having torches which they had been flashing during the course of the dacoity. His brother Shri Jant Singh set fire to the heap of patel kept near the house of Kitab Singh, which emanated sufficient light. The faces of the miscreants were seen in the light of the lanterns, torches, burning patel and the moon light and two of them namely, appellants Ram Swaroop and Yad Ram were recognized while committing dacoity, whereas others whose faces were seen by the witnesses were not known to them. The miscreants are said to have looted a D. B. B. L. gun 70, cartridges, Rs. 2000/- cash and ornaments. It is also alleged by the prosecution that during the course of commission of dacoity, the miscreants while ransacking the house of the complainant were not only flashing their torches, they were also conversing between themselves in the local dialect and enquiring about his brother Jant Singh (PW 3) Shri Dharam Singh who had sustained injuries in the incident died few hours after. Shri Vidya Ram, Chameli Devi, Balbir Singh and Bagawan Singh sustained injuries in this incident, which were cased by miscreants during the course of dacoity. 4. Complainant lodged an oral report at P. S. Gangiri in the morning at about 6. 15 a. m. on 8th August, 1979 which was reduced to writing by Head Constable Shri Mahendra Pal Sharma. He made entries in the G. D. Exht. Ka-3 registering a case under Section 396 IPC Investigation was taken-up by Shri Sher Singh, SO-PW 6 who was then present at the police station. He, after observing formalities, left for the spot alongwith necessary police force and on reaching there held inquest on the dead bodies of Indar Singh and Dharam Singh with the help of SI Shri R. P. Singh and prepared inquest reports Ext. Ka-4 and 5. Thereafter, both the dead bodies were sent to Police Lines Mortuary for post-mortem through Constable Dingambar Singh and Ram Prasad. He also inspected the spot, prepared Site Plan-Ext. Ka-12. He took in his custody the blood stained and plain pieces of the floor and prepared their memo Ext. Ka- 13. Five empty cartridges and wads were recovered on the spot which were kept in sealed cover after preparing memo Ext. Ka-14. He also inspected the spot, prepared Site Plan-Ext. Ka-12. He took in his custody the blood stained and plain pieces of the floor and prepared their memo Ext. Ka- 13. Five empty cartridges and wads were recovered on the spot which were kept in sealed cover after preparing memo Ext. Ka-14. Sample of the burnt ashes was also taken into police custody after preparing memo Ext. Ka-15. He also took in to his custody the bed sheet and pillows on which the deceased Indar Singh had been sleeping in the night and prepared their memo. He inspected the torches of complainant Balbir Singh and Dharam Singh and the two lantern s which were said to have been burning at the time of the incident and after preparing the memo Ext. Ka-17, handed them over in the Surpurdagi of Sri Jant Singh-PW 3. He interrogated the witnesses, made search for appellant Ram Swarup and Yad Ram. But they could not be traced out. On 10th August, 1979 when he returned to police station, he found appellant Ram Swarup in the police lockup. The appellant Yad Ram could not be apprehended and he surrendered before the Court on 6th September, 1979. 5. Shri Vidya Ram, Balbir, Bhagwan Singh and Smt. Chameli were medically examined at District Hospital, Aligarh on 8th August, 1979 between 4 p. m. to 4. 35 p. m. and a number of injuries were found on their person. Some of them were caused by blunt object and some of them were as a result of the fire arms. Post-mortem on the dead body of Indar Singh and Dharam Singh was conducted by Dr. R. A. Singh on 9th August, 1979 at 3 p. m. and 5 p. m. respectively. In the opinion of the doctor, the death of the aforesaid both the deceased had taken place on account of anti- mortem injuries which were caused by fire arms. These reports are Ext. Ka-20 to Ka-24. 6. According to the prosecution case, appellants Nawab Singh alias Nabba and Chheda Lal alongwith four others were apprehended by a police team headed by Shri Surendra Kumar, SO-PW 7 in the night of 18/19th October, 1979, when they are said to have been making preparation for committing dacoity near Bhata Purana within the circle of village Ghilawali. 6. According to the prosecution case, appellants Nawab Singh alias Nabba and Chheda Lal alongwith four others were apprehended by a police team headed by Shri Surendra Kumar, SO-PW 7 in the night of 18/19th October, 1979, when they are said to have been making preparation for committing dacoity near Bhata Purana within the circle of village Ghilawali. During the course of their interrogation, complicity of the said two appellants in this crime came to be known. So their faces we covered and in the same condition they were brought to the police station lock-up. Relevant entries were made in the G. D. Exht Ka-18 of P. S. Gangiri at 4. 45 a. m. on 19th October, 1979. The said two appellants were informed that they were to be put-up for identification tests. 7. Test identification parade of the said two appellants namely Nawab Singh alias Nabba and Chedda Lal was held on 27-11- 1979 in the District Jail, Aligarh under the supervision of Shri Shamshul Islam P. W. 1 who was the then Pargana Magistrate, Atarauli. On receipt of the identification result, charge sheet Exht. Ka-19 was submitted against all the appellants by Shri Surendra Kumar, S. O.-P. W.-7. 8. The appellants abjured the guilt and pleaded not guilty to the charge. Appellants Nawab and Chedda Lal asserted that they were falsely implicated by one Nathi Singh of his village on account of enmity and that they were arrested from their houses/shop and shown to the witnesses and photographed at the police station. 9. The case of the other two appellants was that Shri Baboo Ram, Vidya Ram, Balwant Singh and Jai Ram were real brothers. Shri Vidya Ram is the father of the complainant Balbir Singh, whereas, Balbant Singh is the father of Ram Swaroop, appellant. Their uncle Shri Baboo Ram had died. His wife Smt. Maya Devi got the name of her daughter Smt. Reshma Devi mutated over the land left by him. Shri Vidya Ram objected to the mutation but appellant Ram Swarup supported the case of Maya Devi and has been helping her as well as her daughter Smt. Rashma Devi in cultivation of the land. Shri Yad Ram is sarhu of Ram Swarup and he is alleged to have been assisting Smt. Rashma Devi in cultivation of her land. According to them they have been falsely implicated on account of said enmity. 10. Shri Yad Ram is sarhu of Ram Swarup and he is alleged to have been assisting Smt. Rashma Devi in cultivation of her land. According to them they have been falsely implicated on account of said enmity. 10. To substantiate the charge, the prosecution examined Shamshul Islam, Pargana Magistrate-PW-1, complainant Balbir Singh-PW 2, Jant Singh-PW 3, Smt. Hansa Devi-PW 4, Hakim Singh, PW 5, SI Sher Singh PW 6 and Inspector Surendra Kumar Inspector-PW-7, Shri Jai Dayal and Sri Hari Mohan, Constables were examined as CW 1 and CW 2. Appellants Chheda Lal had examined Gopal Kant, DW-1. 11. On an appraisal of the entire evidence, learned Sessions Judge, held all the aforesaid appellants guilty of the offence with which they stood charged. He accordingly, convicted and sentenced them to the imprisonment for life. It is against this judgment and order that the present appeal has been filed. 12. As already, mentioned earlier, appeal of the two of the appellants namely Ram Swarup and Chedda Lal had already abated on account of their death and so the matter is now confined to Yad Ram and Nawab Singh only. Evidences against these two appellants can be divided into two categories-one who is named in FIR and other whose case is based on identification evidence. Appellant Yad Ram is named in the F. I. R. whereas the case against Nawab Singh is based on identification evidence. 13. It is undisputed that armed dacoity was committed by 8 or 9 miscreants at the house of complainant Balbir PW 2 in the night of 7/8-8-79 in which two of his brothers died and other family members sustained injuries. It is also undisputed that valuable ornaments, cash, a gun and cartridges were looted from his house by the dacoity. It is only participation of the appellants that was challenged. 14. It is submitted by the learned Counsel that there is solitary testimony of complainant Balbir Singh- (PW 2) against appellant Yad Ram and there being no overt act having been specified on his part or the recovery of any incriminating article and the only witness against him not being truthful and honest, his conviction cannot be sustained. He also submitted that the learned Sessions Judge did not appreciated the evidence against him in the proper perspective. 15. He also submitted that the learned Sessions Judge did not appreciated the evidence against him in the proper perspective. 15. Out of the seven witnesses examined by the prosecution, only three witnesses namely Balbir Singh- PW 2, Jant Singh-PW 3, and Smt. Hansa Devi-PW 4 have given an eye account of the incident. PW3 Jant Singh and Smt. Hansa Devi PW 4 did not cite the name of Shri Yad Ram-appellant as one of the miscreants. It was only complainant Balbir Singh-PW 2 who stated that amongst the miscreants, he had recognized appellant Yad Ram and Ram Swarup. During the course of cross-examination, he admitted that appellant Yad Ram is sarhu of the deceased appellant Ram Swarup. he further stated that Baboo Ram was his uncle. He was not aware of the name of his wife but his daughter was Smt. Rashma Devi. He feigned ignorance about any litigation regarding the mutation of name of Smt. Reshma Devi over the property left by his uncle Baboo Ram. He denied the defence version that they had wielded pressure over the appellant Ram Swarup to depose in his favour in the matter of litigation with Smt. Rashma Devi. But instead of giving evidence in their favour, he appeared as a witness for Smt. Rashma Devi. He denied his knowledge that the property of Smt. Reshma Devi is being supervised by appellant Yad Ram and Ram Swarup. To the contrary to the aforesaid evidence of complaint Balbir Singh-PW 2, his brother Jant Singh-PW 3 stated in the cross-examination that his father Vidya Ram and uncle Jai Ram had filed objection in the mutation case of Smt. Rashama Devi. However, he also denied that Ram Swarup had appeared as a witness for Smt. Rashama Devi in that case. Appellants Ram Swaroop and Yad Ram filed copy of a written statement filed in Revenue Case No. 77/75-76 Rashama Devi v. Ram Swarup and Jai Ram and Vidya Ram, which shows that the appellant Ram Swarup had supported the case of Smt. Rashama Devi. The occurrence in question had taken place in the year 1979, just within 2-3 years of that litigation. Complainant Balbir Singh was then aged about 25 years. It could not be said that he was not aware of the litigation between Smt. Rashama Devi and his father and uncle. It appears that he has tried to suppress this fact. The occurrence in question had taken place in the year 1979, just within 2-3 years of that litigation. Complainant Balbir Singh was then aged about 25 years. It could not be said that he was not aware of the litigation between Smt. Rashama Devi and his father and uncle. It appears that he has tried to suppress this fact. Appellant Ram Swarup was his first cousin and appellant Yad Ram, being his relative, both were well-known to the witnesses. There is no recital in the FIR that the had taken any precaution to conceal their identity. In the cross- examination, complainant Balbir-PW 2 stated that both the aforesaid appellants-namely Ram Swarup and Yad Ram had not covered their faces. However, he had not made any conversion with them. Although it can not be held as a rule that no person of the same village or a known person will commit dacoity in his own village without taking precaution to conceal his identity, yet the criminals also, unless they are in the category of dare-devil or reckless have to be attributed with the common sense, although the situation in the present day times have changed, when the young lads do not hesitate in committing crimes on the highways in the day light without caring for the public or the police. But when this occurrence had taken place, the situation was undoubtedly different. However, PW-1 Balbir Singh, having tried to suppress the factum of litigation and consequential enmity with Ram Swarup and Yad Ram-appellant, he cannot be said to an honest and truthful witness. There being no recovery of any looted article of any specific act having been assigned to appellant Yad Ram, in our opinion, Ipse Dixit of PW 2 Balbir could not be held sufficient to warrant his conviction. It can not be said in the circumstances of the case that the complainant had no animus or axe of his own to grind against the said appellant Yad Ram. His participation was, therefore, not established by clinching, cogent and trust worthy evidence. 16. It can not be said in the circumstances of the case that the complainant had no animus or axe of his own to grind against the said appellant Yad Ram. His participation was, therefore, not established by clinching, cogent and trust worthy evidence. 16. Now, we proceed to examine the case of Sri Nawab who was allegedly arrested in the night of 18/19-10-1979 at about midnight by Surendra Kumar Singh SO-PW 7 when he alongwith 6-7 others had assembled near the Brick-clin in village Ghilawali with a view to commit dacoity at the house of one Jagdish Singh of the said village. He alongwith others was taken to the police station where entires were made in G. D. Ext. C-1 at 4. 45 a. m. They were lodged in the police lock-up. At about 9. 25 a. m. same day, all the arrested accused including appellant Nawab were sent to Aligarh through Constable Hakim Singh- PW 5 and two others for being produced before the Magistrate. Evidence of PW 5 Constable Hakim Singh shows that they could reach the Head Quarter, Aligarh at 5. 30 p. m. and by that time Courts were closed for the day. So, aforesaid, appellant and the other arrested accused were taken to Civil Lines Police Station at 6 p. m. and detained in the lock-up there upto 7. 30 a. m. in the morning, when they were again handed over to the said Constable Om Prakesh and Hakim Singh-PW 5 for being produced before the Magistrate. Constable Hari Mohan-CW 2 has deposed that the aforesaid appellant Nawab Singh and other arrested accused while on the lock-up of the Civil Lines Police Station were kept bapardah. 17. In the identification test which was held on 27-11-1979 appellant Nawab Singh was identified by complainant Balbir Singh- PW 2, Jant Singh-PW 3, Smt. Hansa Devi-PW 4 and one Smt. Prakashi Singh. 18. Learned Sessions Judge had found the evidence of the aforesaid witnesses trustworthy and reliable and on that basis he concluded that the appellant Nawab was guilty of the offence under Section 396 IPC. 19. Learned Counsel for the appellant had submitted that there was inordinate delay in holding the test identification parade so as to create a doubt on the genuineness on the test identification parade. 19. Learned Counsel for the appellant had submitted that there was inordinate delay in holding the test identification parade so as to create a doubt on the genuineness on the test identification parade. He further submitted that the appellant was tried for the offence punishable under Section 399/402 of the IPC for having assembled there with an object of making preparation for committing dacoity and that he was acquitted in that case and the entire prosecution case was held to be false and concocted. He further submits that the appellant Nawab Singh was arrested from his house and theory of his arrest from Brickclin of village Ghilawali was a cooked-up story and , in fact, the appellant after being arrested from his house was taken to the police station where his photographs were taken and he was shown to the witnesses and he was detained for a along time at the police station and this was the reason for sending him late to Aligarh. 20. Whenever in a case test identification parade is required, it is desirable that the investigating agency should try to hold the same at the earliest opportunity. An early opportunity to identify the suspectends to minimize the chances of the memory of the identifying witnesses fading away due to long lapse of time but merely because there is some delay in holding the test identification is cannot be said to be stained it there is satisfactory reason given by the prosecution for the delay. The Honble Apex Court in the case of promod Mandal v. State of Bihar, 2005 (1) JIC 75 (SC) : 2005 Supreme Court Cases (Cri) 75, has ruled that "there is not fixed rule as regards the period within which the test identification parade must be held or number of identifying witnesses. It is for the Court to decide on the facts and circumstances of the case and evidence on record whether to accept or reject the evidence of identification. When defence fail to impute any motive to the prosecution for delay in holding the test identification parade nor the defence alleged any irregularity in holding the parade held on facts, delay of one month in holding the parade was not fatal to the prosecution case. " 21. In Summon & Ors. When defence fail to impute any motive to the prosecution for delay in holding the test identification parade nor the defence alleged any irregularity in holding the parade held on facts, delay of one month in holding the parade was not fatal to the prosecution case. " 21. In Summon & Ors. v. State of Karnataka, (2004 (2) JIC 855 SC, 8 years delay in holding identification test was held not to be fatal. 22. In the present case, there is delay of about 38 days. But that itself in our opinion, is not ground for rejecting the evidence of the witnesses if they are held to be otherwise reliable and trustworthy. Invisible and insurmountable difficulty in the way of the prosecution is that the theory of arrest of the appellant on the night of 18th/19th October, 1979 in village Ghilawali near Brickclin has been disbelieves by the learned Sessions Judge, who tried him for the offences punishable under Section 399/402 IPC. He was acquitted of the charge (vide order dated 12-2-82) (copy on record ). Said acquittal order has become final because it was not challenged before any higher Court. So, it is not possible for us now in this case to endorse the view of the learned Sessions Judge that the appellant was arrested in the manner alleged by the prosecution. Furthermore, the circumstances indicate that the appellant was shown to the witnesses before being sent to the jail. There were seven witnesses produced for test identification-four of them correctly identified the appellant. Two witnesses did not identify any one. One witness identified wrong persons, four witnesses who identified the two suspects including the appellant did not commit any mistake at all. Evidence is, therefore, too good to be believed. However, without laying much emphasis on this aspect of the case, it may be significantly noted that the appellant was present there at the police station in the morning of 19th October, 1979. He was not produced before the Magistrate and remanded to jail custody on that day. He was sent to the district Head Quarters for being produced before the learned Magistrate with delay deliberately and so he was not produced there and was lodged in the lock-up of Civil Lines Police station in the night. He was not produced before the Magistrate and remanded to jail custody on that day. He was sent to the district Head Quarters for being produced before the learned Magistrate with delay deliberately and so he was not produced there and was lodged in the lock-up of Civil Lines Police station in the night. The Constables who had taken the appellant to the Head Quarter did not give anything in writing after coming back to police station on 21-10-79. However, during the course of cross examination they stated that the bus in which they had been travelling developed some defect on way and that could reach at the Head Quarter at 5. 30 p. m. when the Courts had already been closed. They had not reported this fact to the SO on coming back to the police station. So, this explanation seems to be an after thought and unreliable. It appears that the suspects were in fact, not sent to the Head Quarter in time only because some delay occurred in showing them to the witnesses. The appellant and already raised this plea at the earliest opportunity before the Magistrate who conducted the test identification parade. 23. It is not worthy that the distance of police station Gangiri from the Head Quarter is only 45 km. and private buses ply on this route distance of 45 kms. could be covered, at the most, within two hours. Even if it is accepted that the bus had developed some defect, another bus could be arranged. Explanation offered by PW-5 is not satisfactory. In the circumstances, when the theory of arrest at the Brickclin has already been disbelieved in the earlier case and the possibility of the appellant having been shown to the witnesses at the police station not being ruled out, it would not be safe to convict the appellant Nawab Singh on the basis of the identification evidence of the said witnesses. No looted article was recovered from his possession. It was, therefore, not proper to convict him on the evidence, which was not convincing, cogent and inspiring confidence. 24. The participation of appellants namely Shri Yad Ram and Nawab Singh @ Nabba in the incident in question is not proved to the hilt. They are, therefore, entitled to acquittal. 25. The appeal is allowed. It was, therefore, not proper to convict him on the evidence, which was not convincing, cogent and inspiring confidence. 24. The participation of appellants namely Shri Yad Ram and Nawab Singh @ Nabba in the incident in question is not proved to the hilt. They are, therefore, entitled to acquittal. 25. The appeal is allowed. Conviction and sentences imposed on appellants Yad Ram and Nawab @ Nabba are set aside and they are acquitted of the charge under Section 396 IPC. They are on bail. Their bail bonds are cancelled. They need not surrender thereto. 26. Material Exhibits shall be disposed of as per direction of the learned Sessions Judge. Appeal allowed. .