M. CHAUDHARY, J. ( 1 ) BOTH these appeals have arisen out of one and the same judgment dated 20-4-81 in sessions trial No. 65 of 1980, State v. Kaushal Kishore and sessions trial No. 470 of 1980 State v. Kewal kishore passed by IV Additional Sessions judge Fatehpur convicting all the accused appellants under Section 396, IPC and sentencing each of them to imprisonment for life thereunder. Co-accused Shanker was acquitted by the Court below by the same judgment. Against judgment and order of K. K. Srivastava, IV Addl. Sessions Judge, fatehpur, D/- 21-4-1981. ( 2 ) SINCE Criminal Appeal No. 799 of 1981 kaushal Kishore v. State of U. P. was filed on behalf of all the accused appellants Criminal Appeal No. 901 of 1981 Ram Pal v. State of U. P. has become redundant. ( 3 ) BRIEF facts giving rise to this appeal are that at 8. 00 a. m. on 25-7-79 Jagat Pal singh resident of village Lahauri lodged a report at Police Station Hussainganj, District Fatehpur situate at a distance of about seven miles from the place of occurrence contending that at about 7. 30 p. m. last evening i. e. 24th of July 79 he was going to have his food and his brother Raj Bahadur singh was teaching the children in the varandah and a burning lantern was kept there diffusing sufficient light. Near the main gate of the house and Ahata his nephews chandra Has Singh and Chandra Kant singh were talking to his behonoi Chandra bhan Singh and his servant Ram Sajiwan was giving fodder to the cattle. A burning lantern was hanging at the main door of the house and a kerosene dibbi was lighted in the kitchen in verandah; that all of sudden 10-12 bandits armed with guns, countrymade pistols, axe, lathis and dandas entered his house including 3-4- bandits putting on dhatas on their faces. On entering the house and sighting Raj Bahadur singh one of the bandists who was putting on dhata shouted that he should be killed; that in the meanwhile Raj Bahadur Singh ran towards the eastern verandah for picking up his licensed gun with cartridges belt hanging of a peg that three bandits putting on dhatas caught hold of him and a scuffle took place between them. In the course of scuffle dhatas of all the three bandits got opened and in the meanwhile Har Kishore fired at Raj Bahadur Singh with gun from close range hitting him at his back and sustaining the fatal injury Raj Bahadur Singh fell down in the angan and succumbed to the injuries sustained by him then and there. In the meanwhile "shanti Devi wife of raj Bahadur Singh ran for his rescue but the bandits caught hold of her and beat her asking whereabouts of the property. One of the nephews of Jagat Pal set fire to the karies (dried stems of arhar} kept outside the house and the Ahata which created sufficient light. Chandra Has ran towards the village abadi raising hue and cry and chandra Bhan Singh along with Chandra kant went towards Murain Ka Purva. On hearing the sound of shots fired and hue and cry raised several co-villagers including Gauri Shankar, Sita Ram, Vijay Bahadur singh and Badlu rushed to the scene of occurrence flashing their torches. Vijay bahadur Singh and other co-villagers residing in neighbourhood started firing and then all the miscreants fled away with the looted property comprised of his licensed single barrel gun with cartridge belt containing twenty two cartridges, one transistor etc. Inmates of the house and the witnesses recognized Kaushal Kishore, Har Kishore and awadhesh in the light of lantern, torches flashed and the fire ignited to the stacks of arhar stems kept there and recognized other bandits well in the said light and could identify them if seen later. It was mentioned in the FIR that several years ago Govardhan, father of accused Kaushal Kisore was murdered and Raj Bahadur Singh and Vijay bahadur Singh alias Mathura Singh, brothers of Jagat Pal Singh were prosecuted in that murdered and Raj Bahadur Singh and Vijay bahadur Singh alias Mathura Singh, brothers of Jagat Pal Singh were prosecuted in that murder case but that case ended in their acquittal and that since then Kaushal kishore and his family members started nursing grudge against them. It was also mentioned in the FIR that dead body of Raj bahadur Singh was lying inside the house and his wife had also sustained injuries and that because of fear and also because the drain was full of water he could not go to the police station to lodge FIR of the occurrence in the night. It was also mentioned in the FIR that dead body of Raj bahadur Singh was lying inside the house and his wife had also sustained injuries and that because of fear and also because the drain was full of water he could not go to the police station to lodge FIR of the occurrence in the night. The police registered a crime against the accused under Section 396, IPC and made entry regarding registration of the crime in the GD (Exts Ka 19 and Ka 20 ). ( 4 ) STATION Officer Amar Singh who took up investigation of the case went to the spot and drew inquest proceedings on the dead body of Raj Bahadur Singh preparing inquest report (Ext. Ka 3) and other necessary papers (Exs. Ka 4 to Ka 7) and handed over the dead body of Raj Bahadur Singh in a sealed cover along with necessary papers to constables AH Hussain and Sheo Pal for being taken for its post mortem. He also inspected the scene of occurrence and prepared its site plan map (Ext. Ka 8 ). He also recorded statements of the witnesses. Injured Shanti Devi was got medically examined at District Hospital Fatehpur. ( 5 ) AUTOPSY on the dead body of Raj bahadur Singh conducted by Dr. J. S. Rai medical Officer District Hospital Fatehpur on 26-7-79 at 2:00 p. m. revealed below noted ante mortem injuries :1. Lacerated wound 3/4" x 1/3" x scalp deep on right side skull 3 1/2 above from right ear placed obliquely. 2. Gun shot wound of entrance 1" x 1" x cavity deep on back of left side of chest 2/4" below inferior angle of scapula and 1 3/4" from vertebral column. Margins inverted and lacerated blackening and tattooing present. The doctor removed 43 small pellets and wadding pieces. On internal examination 7th and 8th ribs on left side were found fractured. Both the lungs and pleura, pericardium and heart were punctured. Peritoneum, small and large intestines, liver and spleen were also punctured and stomach ruptured. Stomach and small intestine were empty and large intestine full of faecal matter. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about two days ago. Peritoneum, small and large intestines, liver and spleen were also punctured and stomach ruptured. Stomach and small intestine were empty and large intestine full of faecal matter. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about two days ago. ( 6 ) ACCUSED Ram Sagar was arrested by the police on 23rd of August 1979 and taken baparda to the police station and lodged in the District Jail Fatehpur on 24th of August 1979 duly screened. Accused Ram Pal and Ram Sajiwan were arrested on 31 -8-79 and taken Baparda to the police station and lodged in the District Jail same day duly screened. Accused Kewal Kishore surrendered in the Court on 28-2-80 and lodged in the District Jail Fatehpur the same day. ( 7 ) ACCUSED Ram Sagar, Ram Pal and Ram sajiwan along with Shanker lodged in District Jail Fatehpur were subjected to test identification proceedings in connection with the said crime on 31-8-79. In all seven witnesses were produced to identify them as such and out of seven Badlu could not identify any of them. Gauri Shankar is not a good witness of identification as he identified shanker and Ram Sajiwan correctly but committed two wrongs and thus his performance was 50% correct. Chandra Has Singh is also not a good witness of identification as he identified correctly Ram Sajiwan only and committed three wrongs. Out of remaining four witnesses of identification accused ram Sagar was identified correctly by Jagar pal Singh, Chandra Has Singh and Vijay bahadur Singh as such. Accused Ram Pal was identified correctly by Jagat Pal Singh, chandra Has Singh and Chandra Kant singh as such. Accused Ram Sajiwan was identified by Jajat Pal Singh, Chandra Has singh, Chandra Kant Singh and Vijay bahadur Singh correctly. ( 8 ) KEWAL Kishore who was lodged in District Jail Fatehpur on 28-2-80 was subjected to test identification proceedings in connection with the said crime on 21 -5-80 and in all six witness were produced to identify him as a participant in the alleged crime and he was identified by Chandra Has Singh and chandra Kant Singh correctly as such. ( 9 ) AFTER completing the investigation the police submitted charge sheets against the accused accordingly. ( 9 ) AFTER completing the investigation the police submitted charge sheets against the accused accordingly. ( 10 ) AFTER framing of charge against the accused the prosecution examined Jagat Pal singh (PW-1), Chandra Kant Singh (PW-2), and Chandra Has Singh (PW-3) as eye-witnesses of the occurrence. Testimony of rest of the witnesses is that of formal nature. PW-4 Mahfooz All, the then SDM Fatehpur who conducted identification proceedings of accused Ram Sagar, Ram Pal, Ran Sajiwan and Shanker has proved the identification memo (Ext. Ka2 ). PW-5 SI Devi Dayal Dixit who conducted investigation of the crime initially has proved the police papers. PW-6 Dr. J. S. Ali Medical Officer District Hospital fatehpur who conducted autopsy on the dead body of Raj Bahadur Singh has proved the post mortem report stating that ante mortem injuries sustained by the victim were sufficient to cause his death in the ordinary course of nature (Ext. Ka 9 ). PW-7 Station officer Amar Singh who submitted charge sheet against accused Kewal Kishore has proved the same (Ext. Ka 16) deposing that kewal Kishore surrendered in the Court concerned on 28-2-80. PW-8 constable Raj kumar, PW-9 constable Chandra Kishore and PW-11 head constable Prasu Ram Giti are link witnesses. PW-12 ASDM Laxmi Kant shukla who conducted identification proceedings of accused Kewal Kishore in district Jail Fatehpur on 21-5-80 has proved the identification memo (Ext. Ka. 25 ). PW-10 head constable Ansar Ahmad who prepared check report on the basis of the written report handed over by Jagat Pal Singh to him at the police station and made entry regarding registration of the crime in GD has proved these papers (Exts. Ka. 19 and Ka. 20 ). He also appeared as witness of link evidence. ( 11 ) THE accused pleaded not guilty denying the alleged occurrence altogether and attributing their false implication to enmity. Accused Ram Sagar, Ram Pal and Ram sajiwan stated that they were shown by the police to the witnesses. ( 12 ) ON an appraisal of the evidence on record and after hearing the parties counsel the learned Additional Sessions Judge recorded conviction of the accused appellants under Section 396, IPC convicting each of them to imprisonment for life thereunder. ( 13 ) FEELING aggrieved by the impugned judgment and order the accused appellants have preferred the appeal for redress. ( 13 ) FEELING aggrieved by the impugned judgment and order the accused appellants have preferred the appeal for redress. ( 14 ) WE have heard the appellants learned counsel and the learned AGA as well. ( 15 ) NOW taking up the case of accused-appellants Kaushal Kishore. Har Kishore and Awadesh who are named in the FIR there is the testimony of Jagat Pal (PW-1), chandra Kant Singh (PW-2) and Chandra has Singh (PW-1), Chandra Kant Singh (PW-2) and Chandra Has Singh (PW-3 ). PW-1 jagat Pal Singh, brother of the deceased and the first informant narrated all the facts of the said occurrence from the beginning to the end as stated above deposing that as kaushal Kishore exhorted to kill Raj bahadur Singh the latter pushed for picking up his gun but in the meanwhile three bandits who were putting on dhatas caught hold of him and a scuffle took place between them and in the meanwhile dhatas put on by all the three got opened and he recog nized them as Kaushal Kishore, Har Kishore and Awadesh and immediately Har Kishore fired at Raj Bahadur Singh with gun hitting him at his back and that in the meanwhile his wife Shanti Devi rushed for his rescue and the bandits also beat her causing injuries to her and that the bandits ransacked his house or about half an hour and after ransacking the house bolted away with the looted property through the gate of the Ahata towards north. PW-2 Chandra Kant Singh whose statement was recorded in the Court on 31-10-80 is a child witness as he stated his age as 13 years. Thus on the date of occurrence he was below 12 years of age. He deposed that the alleged evening he along with his brother Chandra Has Singh and phupha Chandra Bhan Singh were sitting in the verandah near the main gate of the ahata; that there is huge land between the main gate of ahata and the residential building and there is boundary wall and a wooden gate was fixed in the western wall of the house and Ahata; that at about 7. 06 or 7. 06 or 7. 30 p. m. some 10-12 bandits including three putting on dhatas armed with guns, country made pistols, axe, lathi and dandas entered into the ahata and went inside the house; that then he and his phupha chandra Bhan Singh went towards Murain ka Purva and his brother Chandra Has singh ran towards the village raising hue and cry; that then Vijay Bahadur resident of Ghasi Ka Purva taking his licensed gun, gauri Shankar the village Pradhan and badlu taking lathi and torch reached there, that Chandra Has Singh ignited fire to the stacks of arhar kept near the neem tree, that he along with Chandra Has Singh; chandra Bhan Singh and others standing by the side of dilapidated house of Din Dayal situate to the south of his ahata recognized the bandits well in the light of torch flashed and flames of the burning fire put to arhar stems and saw Kaushal Kishore, Har kishore and Avadesh among them when they ran away towards the north. PW-3 Chandra has Singh, brother of Chandra Kant Singh (PW-2) elder to him by three years tried to corroborate him stating likewise. ( 16 ) FROM the testimony of these three witnesses it is evident that by the time the bandits ran away after committing the alleged crime it had become dark. A perusal of the site plan map (Ext. Ka. 8) goes to show that neem three is across the lane to the west of the house and ahata of the victims. The dilapidated house of Din Dayal is situate to the south of the ahata and houseof the victims, and the house of Gulzar to the west of the house of Din Dayal across the lane. PW-1 Jagat Pal deposed in his examination-in-chief that after committing the murder of his brother Raj Bahadur Singh and ransacking the house the bandits bolted away from the gate of the ahata towards north. Thus PW-2 Chandra Kant Singh and pw-3 Chandra Has Singh who were aged about 12 years and 15 years respectively at the time of occurrence would have had only fleeting glimpses of the fleeing bandits who were 10-12 in number in the light of torch flashed and in the flames of the burning fire which was allegedly ignited to the stacks of arhar stems at a considering distance from the place where they were standing. The distance from one point to the other has not come in evidence but it is difficult to believe that these two boys of tender years of age would have been able to see and recognize any of the bandits whom they saw fleeing away after coming out of their house while they were standing taking the side of the dilapidated house of Din Dayal under terror as firing was going on. ( 17 ) AS far as the testimony of PW-1 Jagat pal Singh, brother of the deceased and the first informant is concerned his ocular evidence too is not free from doubt. According to him Gauri Shankar, the village pradhan was present near the scene of occurrence. One Vijay Bahadur Singh taking his licensed gun was present there. According to PW-1 jagat Pal Singh he himself had, got his licensed gun though according to him at the time of occurrence it was kept in a box. Police Station Hussain Gang was situate only at a distance of seven miles from village lahauri. It is incomprehensible and unintelligible as to why the FIR of the occurrence was not lodged soon after the alleged occurrence at the police station. It was the month of July and the alleged occurrence took place at about 7. 3. 0p. m. No explanation has been offered at all by PW-1 Jagat Pal Singh in his examination-in-chief as to why FIR of the occurrence was not lodged at the police station the same evening. In fact this witness jagat Pal Singh (PW-1) nowhere stated in his examination-in-chief that after getting report of the occurrence scribed by his behnoi Chandra Bhan Singh in the next morning he went to the police station and handed over written report of the occurrence to the police there. He stated in his cross-examination that the following morning the police reached the village at about 8. 30 a. m. and after drawing the inquest proceedings the dead body was sent to the police station in a bullock-cart and it was sent from the police station to Fatehpur by Jeep. He further stated that the dead body was sent in a jeep from the police station to Fatehpur after two hours of recording the check report of the crime. He further stated that the dead body was sent in a jeep from the police station to Fatehpur after two hours of recording the check report of the crime. Thus the argument of the appellants learned counsel that FIR was framed after due deliberation and consultation and is ante timed is not devoid of any force. It has been mentioned in the FIR that the report could not be lodged in the night on account of fear and also because the drain was full of water. However PW-1 Jagat pal Singh, the first informant stated nothing of this sort in his deposition. Rather he stated in his cross-examination that it had rained 3-4 days prior to the occurrence and the drain was not full of water the day the occurrence took place. Thus inordinate unexplained delay of about 10-11 hours in lodging the FIR is fatal to the prosecution case and no reliance can be placed on it, and the prosecution case gets shattered because of the possibility of the facts stated therein to be tainted and fabricated; And if the FIR is shaken then the very basis of the prosecution case stands knocked out. On this score also authenticity of the prosecution case falls to the ground as the FIR loses all its corroborative value. The appellants learned counsel drew our attention towards the post mortem report which mentions that the doctor conducting autopsy on the dead body found that the stomach and small intestine were empty and large intestine full of faecal matter which does not coincide with the ocular testimony as it goes to suggest that in all probability the occurrence took place at some hour in the mid might. He further contended that it leads to the inference that due to insufficiency of the light in the midnight the assailants could not be recognized and in the morning report of the occurrence was got scribed after due consultation and confabulation. The said argument advanced by the appellants learned counsel is not without any substance. ( 18 ) FURTHER, PW-1 Jagat Pal Singh does not appear to be a wholly truthful and straightforward witness as he has given evading answers on such points which must be within his knowledge. The said argument advanced by the appellants learned counsel is not without any substance. ( 18 ) FURTHER, PW-1 Jagat Pal Singh does not appear to be a wholly truthful and straightforward witness as he has given evading answers on such points which must be within his knowledge. He admitted that govardhan, father of accused Kaushal kishore was murdered some twenty years prior to the occurrence and accused Kaushal kishore, son of the deceased lodged an FIR of that murder case naming his brothers Raj bahadur Singh and Mathura Singh alias vijay Bahadur Singh as the culprits. However he stated that he could not say if Sheo shanker, father of accused Awadesh appeared as a witness for the prosecution in that murder case. Thus there are clear indications in his testimony that he is not a truthful person and has taken recourse to untruths and half truths at several places. He wanted us to believe that all the three persons whom he named in the FIR as the qulprits responsible for the murder of his brother Raj Bahadur Singh were putting on dhatas on their faces and as they caught hold of Raj Bahadur Singh he grappled with them and in the course of grappling, their dhatas were opened. This part of his evidence is so dressed up and artificial that we cannot persuade ourselves to act upon it. It is incomprehensible and unpalatable if three culprits putting on dhatas caught hold of the victim and one of them fired at him there could be such a grappling between them that dhatas of all the three culprits would get opened because there was no occasion for such a grappling between them under the circumstances. ( 19 ) FURTHER, Shanti Devi the injured and wife of the deceased who rushed for his rescue and servant Ram Sajiwas who was present inside the Ahata were the best witnesses to support the prosecution case but neither of them was produced and examined by the prosecution for the reasons best known to them. ( 19 ) FURTHER, Shanti Devi the injured and wife of the deceased who rushed for his rescue and servant Ram Sajiwas who was present inside the Ahata were the best witnesses to support the prosecution case but neither of them was produced and examined by the prosecution for the reasons best known to them. ( 20 ) FURTHER, statements of PW-2 Chandra kant Singh and PW-3 Chandra Has Singh are inconsistent on material aspects of the case as PW-2 Chandra Kant Singh deposed that Vijay Bahadur Singh residing at Ghasi ka Purva reached there with his licensed gun and fired 3-4 shots with his gun whereas pw-3 Chandra Has Singh stated in his ex-amination-in-chief that Vijay Bahadur Singh reached there taking his torch and that at that time he was not possessed with any weapon. ( 21 ) FOR the above, we are of the view that it is doubtful if the occurrence took place at the time and in the manner alleged by the prosecution. Admittedly there was enmity between the accused named in the fir on the one hand and Jagat Pal Singh and his family members on the other, and hence in view of the above state of evidence and facts and circumstances attending the case possibility cannot be ruled out altogether that these accused were named in the FIR on suspicion due to enmity. ( 22 ) NOW taking up the case of accused ram Sagar, Ram Pal, Ram Sajiwan and kewal Kishore, case of them rests on the evidence of identification. Three accused namely Ram Sagar, Ram Pal and Ram sajiwan were subjected to test identification parade in connection with the said crime in district Jail, Fatehpur on 25-10-79. Accused ram Sagar was subjected to test identification parade in connection with the said crime after two months of being lodged in the District Jail as he was lodged in the jail on 24-8-79 and accused Ram Pal and Ram Sajiwan after more than seven weeks (54 days) of being lodged in the District Jail as they were lodged in the jail on 31-8-79. All the three identification witnesses examined by the prosecution and Chandra Raj Singh, son of the deceased belonged to one family residing at village Lahauri. Gauri Shankar, the village pradhan the identifying witness also resided at village Lahauri. All the three identification witnesses examined by the prosecution and Chandra Raj Singh, son of the deceased belonged to one family residing at village Lahauri. Gauri Shankar, the village pradhan the identifying witness also resided at village Lahauri. Vijay Bahadur singh the identifying witness resided at ghasi Ka Purva and Badlu and Murain Ka purva both the places situate adjacently to village Lahauri. No explanation has been offered for the delay in holding test identification parade of these three accused particularly when all the identifying witnesses belonged to the same village or to the places situate adjacently thereto. It creates considerable doubt as to whether the delay in holding the test identification parade was in order to enable the identifying witnesses to see them in the jail premises or the Court premises and make a note of their features. Over and above all these things PW-1 Jagat Pal singh did not mention any distinctive features regarding stature, structure, complexion or age of any of the accused abovenamed in the FIR. PW-2 Chandra Kant Singh admitted in his cross-examination that he did not state any distinctive features or marked peculiarity regarding personality, age or complexion of any of the bandits in his statement recorded by the investigating officer. As observed above PW-2 Chandra Kant singh and PW-3 Chandra Has Singh would have had fleeting glimpses of the fleeing bandits as they saw them in the light of torch and in the flames of burning fire allegedly ignited to the stacks of archar stems from a considerable distance. All these three accused were subjected to test identification proceedings after three months of the occurrence. Under such circumstances the impressions regarding distinctive features of the bandits whom they recognized might have blurred or obliterated from their minds and it is difficult to accept that the identifying witnesses under the circumstances were able to retain the impressions regarding distinctive gestures or facial expressions of any of the bandits in their minds so as to identify them correctly after lapse of a period of three months as neither of them had an opportunity to see any of them closely. The evidence of identifying witnesses in order to carry conviction should ordinarily clarify as to how and under what circumstances they came to pick out a particular accused and details of the part played by him in the crime in question with reasonable certainty. The evidence of identifying witnesses in order to carry conviction should ordinarily clarify as to how and under what circumstances they came to pick out a particular accused and details of the part played by him in the crime in question with reasonable certainty. A perusal of the identification memo goes to show that in column No. 7 description or features of the suspects whom the witness came to identify have not been mentioned at all. ( 23 ) SAME is the position regarding identification evidence of accused Kewal Kishore who surrendered in the Court concerned on 28-2-80 and lodged in the District Jail fatehpur the same day. He was subjected to test identification parade in connection with the said crime on 21-5-80 after more than eleven weeks (82 days) of being lodged in District Jail and nine months from the date of occurrence. After lapse of a period of nine months from the date of occurrence it is difficult to accept that under the circumstances stated above the witness would be able to identify the suspect correctly at the test identification proceedings. ( 24 ) NORMALLY the identification evidence is a weak type of evidence and when it appears that test identification parades have not been held properly at the earliest then the identification evidence becomes all the more weak. ( 25 ) IN view of the above infirmities and incongruities the evidence furnished by the prosecution is too shaky, suspicious and fragile to carry sturdy basis for conviction of any of the accused appellants. We therefore find that the prosecution has failed in establishing guilt of the accused convincingly and satisfactorily beyond reasonable doubt. Since the judgment of the trial Court is based on misappreciation of evidence and is somewhat perfunctory it cannot be sustained in law and is liable to be set aside. ( 26 ) THE appeal is therefore allowed and the conviction of the accused-appellants recorded by the trial Court under Section 396, IPC and sentence of imprisonment for life awarded thereunder are set aside. ( 27 ) THE accused-appellants are hereby acquitted of the charge levelled against them. They are on bail. Their bail bonds are hereby discharged. ( 28 ) OFFICE to send copy of the judgment and the record of the case to the Court below immediately for necessary compliance under intimation to this Court within two months from today. Appeal allowed. ( 27 ) THE accused-appellants are hereby acquitted of the charge levelled against them. They are on bail. Their bail bonds are hereby discharged. ( 28 ) OFFICE to send copy of the judgment and the record of the case to the Court below immediately for necessary compliance under intimation to this Court within two months from today. Appeal allowed. .