ORAL JUDGMENT 1. This appeal arises out of Judgment rendered by learned IIIrd Ad-hoc Additional Sessions Judge, Ambajogai, in Sessions Case No.46 of 2005. By the impugned Judgment, appellant has been convicted, for offences punishable under Sections 395 and 397 of the I.P.C. He is sentenced to suffer rigorous imprisonment for 7 (seven) years and to pay a fine of Rs.1,000/- (Rs.One thousand) in default, to suffer simple imprisonment for 1 (one) month. 2. The prosecution case, in brief, is that on 12th January 2005, informant - Maharudra Lamture was at his residential house situated adjacent to his agricultural land where, there is a cattle house etc., called "Lamture Vasti" at Yusuf Wadgaon. His wife - Sou.Sushila and other family members were present in the house. There is a servant’s room outside the house where, his servant - Ganesh Kale was residing. His son, by name, Manmath was sleeping in open space alongwith other servants. After about 10.00 p.m., his servant - Ganesh noticed that some unidentified persons had gathered outside the room. So, Ganesh latched his room from inside. Those persons were armed with iron rod and knife. Those 5/6 persons broke open the door of the servant’s room. They forcibly entered the room. They robbed gold necklace etc.from wife of the servant - PW Ganesh. The agricultural servant realised that dacoits had entered the room and as such he started calling his master, i.e. informant. The informant PW-Maharudra awoke and saw from the ventilator of the house that 5/6 unidentified persons were standing outside. Soon they broke open door of his house, forced entry inside and committed theft of gold and silver ornaments as well as cash amount. The culprits assaulted informant-Maharudra, his wife - Sushila and son - Manmath. In the course of such assault, informant - Maharudra received a contusion injury and his servant Ganesh Kale sustained a contusion on right arm. The culprits decamped with the booty. In the meanwhile, informant - Maharudra rang up the Police from inside the house. The Police party, however, reached his house after the culprits had fled away. 3. Informant-Maharudra lodged a report regarding the incident of dacoity. Crime was registered by the Police on his report. He reported that gold bangles, a gold necklace, two Mangalsutras, a necklace and cash amount were stolen away from his house. 4. The Police arrested the appellant on suspicion. 3. Informant-Maharudra lodged a report regarding the incident of dacoity. Crime was registered by the Police on his report. He reported that gold bangles, a gold necklace, two Mangalsutras, a necklace and cash amount were stolen away from his house. 4. The Police arrested the appellant on suspicion. An amount of Rs.450/- was recovered from him. Nothing else was recovered at his instance. The Test Identification Parade (TIP) was held on 8th April 2005. The Executive Magistrate mixed the appellant with similar group of persons. The appellant was identified by informant as well as his servant - Ganesh Kale. On basis of material gathered during course of investigation, the appellant was charge-sheeted for offences punishable under Section 395 and 397 of the I.P.C. 5. A charge (Exh.22) was framed against the appellant. He pleaded not guilty. He denied truth into the accusations. His defence was of simple denial. He asserted that he has been framed in a false case. 6. At the trial, the prosecution examined in all 12 (twelve) witnesses and also adduced certain documentary evidence. The learned Sessions Judge held that the prosecution could successfully establish identity of the appellant as one of the dacoits. The learned Sessions Judge came to the conclusion that though substantial recovery was not made, yet presence of the appellant at the relevant time, amongst the gang of dacoits, was duly established. The appellant came to be convicted and sentenced, as stated at the outset. 7. Before I proceed to scrutinise evidence tendered by the prosecution, let it be noted that the trial Court did not give any importance to recovery of Rs.450/-, from pocket of the appellant’s Safari dress. No stolen article was found with him. Nor his Police custody could reveal the identification of other culprits. The recitals of the F.I.R. (Exh.26) purport to show that one of the dacoit was found wearing Khaki coloured Safari dress. The appellant was not found to have put on Safari dress of Khaki colour. His Safari dress was of gray colour. The trial Court, however, came to the conclusion that the discrepancy regarding colour of the Safari dress was minor. Out of the 12 (twelve) witnesses examined by the prosecution, PW-5 Maharudra is the informant, PW-6 Ganesh is his servant and PW-7 Manmath is his son. His Safari dress was of gray colour. The trial Court, however, came to the conclusion that the discrepancy regarding colour of the Safari dress was minor. Out of the 12 (twelve) witnesses examined by the prosecution, PW-5 Maharudra is the informant, PW-6 Ganesh is his servant and PW-7 Manmath is his son. It is asserted that they saw the dacoits during course of the incident and identified the appellant as member of the gang. 8. First, it would be useful to see whether identification of the appellant in the Court by PW-5 - Maharudra, PW-6 Ganesh and PW-7 Manmath is reliable and acceptable. The incident occurred in the night of 12th January 2005. The witnesses were examined after about one year. The testimony of PW-5 Maharudra reveals that he heard shouts of the servant i.e. PW-Ganesh and hence awoke at about 10.45 p.m. He noticed that the entrance door and the rear door of the house were closed from outside. He states that he opened ventilator and saw outside. He noticed that 7/8 persons were standing outside. There was electric tube light in front of his house. Those persons were armed with sticks, knife, iron rod. He gathered that they were dacoits and, therefore, immediately, informed the Police on his Cell phone. Those culprits broke open the front door and forced entry in his house. They threatened him and his wife to kill. They robbed his wife of the gold ornaments at point of knife. They assaulted him and his wife. He narrated as to what ornaments were stolen away. His testimony shows that one of the thief was attired in a Safari dress of gray colour. This part of his statement is inconsistent with the recitals of the F.I.R. (Exh.26). 9. Secondly, PW-5 Maharudra gave general description of the culprits. There was no special reason for him to identify the appellant except for the similarity of Safari dress put on by the culprit. He states that on 8.4.2005, he identified the appellant during course of the TIP held by the Tahsildar, Kaij. He corroborates the statement made in the identification parade (Exh.27). His version reveals that the room of servant is at a distance of 40 feet from his residential house. He admits, unequivocally, that at the time of incident, there was darkness around the place and there was no moonlight available. He corroborates the statement made in the identification parade (Exh.27). His version reveals that the room of servant is at a distance of 40 feet from his residential house. He admits, unequivocally, that at the time of incident, there was darkness around the place and there was no moonlight available. He admits that in the vicinity of his house, there are cattle-sheds cum houses. Thus, it is difficult to hold that there was sufficient illumination available outside the house to identify the culprits. 10. Coming to the version of PW-6 Ganesh, it emerges that he also narrated about the incident of dacoity committed by 7/8 unidentified persons, who visited the vicinity of "Lamture Vasti" in the relevant night. His version reveals that gold Ganthan of one tola, a Mangalsutra and ear-rings of his wife were snatched away by the culprits. He was assaulted by them. Thus, in succession, one after another, the dacoits committed house breaking and theft at the servant’s room as well as house of the master. The evidence of PW-Ganesh shows that he identified the appellant in the Court. His version reveals that he identified the appellant during course of the identification parade. He admits that he is faithful servant of PW-Maharudra. He claims that he gave statement before the Police, during course of investigation, to the effect that one of the culprit had put on Safari dress and was armed with knife. He also stated before the Police that he would be able to identify that person, if shown to him. His Police statement, however, is silent regarding these aspects. The omission in his Police statement is glaring. Needless to say, PW-Ganesh did not immediately state before the Police that due to particular description of the culprit and having regard to the Safari dress put on by him, the identification of such culprit was possible for him. 11. As regards version of PW-7 Manmath, it is worthwhile to note that he was sleeping in the nearby open space. According to him, at about 10.30 p.m., 5/6 unknown persons and one person wearing black pant and red shirt approached him. That person tied his hands and legs and made him to lie down in supine position. He could not talk with either of them as his face was downwards. He was kicked by somebody from the members of the gang. That person tied his hands and legs and made him to lie down in supine position. He could not talk with either of them as his face was downwards. He was kicked by somebody from the members of the gang. He stated that the appellant was one of the member of the gang of culprits. The basis for making such an identification is that the appellant was wearing Safari dress of gray colour at the relevant time. There is glaring omission in his Police statement regarding such reason for identification of the appellant. These omissions are important. For, after about one year, PW-Manmath gave improvised statement in the Court that the appellant could be identified due to the fact that he was putting on Safari dress at the relevant time. Moreover, it does not appear probable that he was in a position to identify the appellant. For, while he was in slumber, suddenly 5/7 persons approached him and one of them wearing red shirt and black pant tied his hands and legs. Thereafter, he was made to lie down with face towards earth. It is difficult to believe, therefore, that he was in a position to see and identify either of the culprit. 12. This takes me to the evidence tendered by PW-11 Shri Mersari, who was working as Tahsildar-cum-Executive Magistrate at Kaij on 8.4.2005. He arranged a Test Identification Parade (TIP). He claims that panchas were called at Tahsil Office. According to him, the appellant was mixed up with a group of 12 persons and they were made to stand in the hall. His version purports to show that PW-Maharudra, PW-Ganesh and PW-Manmath identified the appellant. He accordingly prepared a panchnama (Exh.61). He narrated as to what care he had taken while conducting the TIP. The legality of TIP may not be discussed with all the details. Suffice it to say that notwithstanding availability of opportunity of holding the TIP at earliest, the Executive Magistrate unnecessarily delayed the holding of TIP. The appellant was produced before the Judicial Magistrate on various occasions after the arrest. It is nobody’s case that he was not available for identification by the complainant and the other witnesses. No care was taken to verify whether the appellant wanted to change his position and that the other members of the gang, with whom, he was mixed were of similar age and height etc. It is nobody’s case that he was not available for identification by the complainant and the other witnesses. No care was taken to verify whether the appellant wanted to change his position and that the other members of the gang, with whom, he was mixed were of similar age and height etc. The Test Identification Parade (TIP) held after such a long gap of about four months cannot be implicitly relied upon. The Apex Court, in "Soni vs. State of U.P. (1982) 3 SCC 368 (1) held that genuineness of the Test Identification Parade would be rendered in doubt if such parade is held after a lapse of long period. 13. It is well settled that after a gap of considerable period, the reliability of the Test Identification Parade is diminished. The evidence tendered by the prosecution relates to the fact regarding the incident of dacoity, which occurred in the relevant night. However, identity of the appellant as member of the gang of dacoit is not proved beyond reasonable realm of doubt. As stated before, no identified stolen article was recovered from the appellant. Under these circumstances, the charge levelled against the appellant must fail. 14. In the result, the appeal succeeds and is accordingly allowed. The impugned Judgment of conviction and sentence rendered by learned IIIrd Ad-hoc Additional Sessions Judge, Ambajogai, in Sessions Case No.46 of 2005 is set aside. The appellant is acquitted of the offences punishable under Section 395 and 397 of the Indian Penal Code. He shall be set free, if not required in any other matter. The fine amount, if deposited, shall be refunded to him. So also, the amount of Rs.450/- recovered from him be returned to him.