JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—Heard Sri Kamal Krishna, Senior Advocate assisted by Sri H.S. Singh, learned counsel for the appellant and learned A.G.A. for the State. 2. Three accused namely Har Charan, Rameshwar and Rajjan were sent up for trial in S.T. No. 110 of 1979. Accused Rameshwar and Rajjan were held not guilty and they were given a clear acquittal whereas the present appellant Har Charan was convicted under Sections 395 and 412 I.P.C. He was sentenced for 5 years R.I. under Section 395 I.P.C. and one year R.I. under Section 412 I.P.C. and both the sentences were directed to run concurrently. 3. The occurrence is alleged to have taken place on 16/17.12.1978 in the mid night. The F.I.R. was registered on 17.12.1978 at 9.15 p.m. at Police Station Kulpahar, District Hamirpur by the first informant Kadhora PW-1. 4. The prosecution case as unfolded in the F.I.R. is that the first informant alongwith his family members was sleeping in his house. A lantern was hanging in the inner Atari and a lamp was burning in the ‘Paur’. He heard sound of foot-steps on thereof and then he say a few dacoits on the Khaprail. They were about 15 or 16 in number. One of them was armed with rifle, ten armed with gun and the rest were armed with lathies. After entering the house they started beating him and his family members including his son, his wife and daughter-in-law. He raised alarm at which they beat him and his son Mullu. However, his son Mullu some how escaped and collected the villagers who fired at the Dacoits. Villagers Jagat Raj, Man Pyare, Gauri Shanker and Arjun also set fire to the Jhankar lying there and saw the dacoits in the light of that fire. The dacoits had taken away ornaments. He went to police station in the morning and lodged F.I.R. Ex. Ka-1. He had also disclosed list of the stolen property in that F.I.R. 5. On the next day, the Investigating Officer visited the spot. He recorded the statements of the witness, prepared site plan, examined the lantern and the lamp in the light of which the witnesses claim to have seen the dacoits. On 19.12.1978, the Investigating Officer Sri Chandra Bhan Singh was coming from village Chirauli after patrolling. The A.S.I. Sri Sarman Singh was with him, and five or 6 constables were also with him. On 19.12.1978, the Investigating Officer Sri Chandra Bhan Singh was coming from village Chirauli after patrolling. The A.S.I. Sri Sarman Singh was with him, and five or 6 constables were also with him. When they were near the iron bridge on Rath Mahoba road, they saw two persons waiting for the bus near the said bridge. Seeing the police, both of them tried to escape. But the police successfully arrested them. One told his name as Jaggu and the other as Har Charan. From the possession and search of Jaggu seven ornaments were recovered. From the possession of accused Har Charan, the I.O. recovered ten ornaments. These ornaments were Kardhani, two pairs of payal, made of silver, Kargata made of silver, another Kargata made of silver, one rakhi, made of silver, two Hai made of silver, two pairs of bora made of silver, Choora made of silver and 26 bichhuas made of silver. The Investigating Officer sealed the articles recovered from each accused in separate bundles and prepared recovery memo. Both the accused were made Baparda on the spot. They were taken to police station Kulpahar where an entry was made in the G.D. Copy of which is Ex. Ka-6. 6. Both these accused disclosed that the other dacoits involved in this case were Rameshwar r/o qasba Jaitpur and Rajjan r/o mohalla Bajaria, qasba Jaitpur. Accordingly, the I.O. arrested both of them from their house on 20.12.1978 and made them Baparda. They were brought at the police station Kulpahar at 7.30 p.m., a copy of the G.D. Entry is Ex. Ka-7. 7. The Investigating Officer lateron submitted report for identification of the accused persons and also for identification of the property. The learned Magistrate First Class conducted the identification of accused Jagoo, Harcharan, Rajjan and Rameshwar on 3.2.1979 in district Jail Hamirpur. Accused Jaggoo was correctly identified by Mullu, Man Pyare, Gauri Shanker and Jagatraj. Accused Harcharan was correctly identified by Kadhorey, Mullu and Sabaiya, Man Pyare, Gauri Shanker, Arjun and Jagat Raj. Accused Rajjan was correctly identified by only Arjun. Accused Rameshwar was correctly identified by Sabaiya, Man Pyare and Arjun. The identification memo is Ex. Ka-15. 8. The injured Smt. Harmi w/o Sabaiya, Smt. Dharmi w/o Kadhora and Kadhora himself, Sabaiya and Ram Tullu were sent to Hospital for examination of their injuries. Dr. Accused Rajjan was correctly identified by only Arjun. Accused Rameshwar was correctly identified by Sabaiya, Man Pyare and Arjun. The identification memo is Ex. Ka-15. 8. The injured Smt. Harmi w/o Sabaiya, Smt. Dharmi w/o Kadhora and Kadhora himself, Sabaiya and Ram Tullu were sent to Hospital for examination of their injuries. Dr. Tripathi examined their injuries and noted the details of the injuries in the reports Ext. Ka-16 to Ka-20, respectively. 9. The prosecution examined a number of witnesses in support of its case. Conviction of the appellant rests on the evidence of identification of the appellant himself as well as identification of the looted articles and thereby conviction has been recorded against him. The present appellant was correctly identified by all the seven witnesses. Identification evidence in respect of other co-accused was held by the learned Session Judge not sufficient to record a conviction. All the accused had relations in the village from where the witnesses, who identified, used to reside. Therefore, the learned Sessions Judge was of the view that conviction on the basis of identification was not safe. The case of the present appellant was different and he was thus convicted. 10. Sri Kamal Krishna, Senior Advocate has challenged the evidence of identification. He has argued that the appellant was arrested on 12.12.1978 at 5.00 p.m. but he was lodged in jail on 20.12.1978 and the identification was made only on 3.2.1979 i.e. after 47 days. Evidence of identification was challenged on a number of grounds. 11. The first objection to the identification evidence is too good and identification to be true and uphold the conviction, specially since the identification parade was conducted after lapse of 47 days. It is also stated that there is no explanation that the accused was kept Baparda from 20.12.1978 to 3.2.1979. The statement of PW-15 has been placed in support of this argument where he has admitted that at the time when the assailants-dacoits were arrested, the Investigating Officer had already informed the witnesses regarding their arrest and they had knowledge about the appellant being in jail since 20.12.1978, therefore, the fact that the Investigating Officer had informed the witnesses cannot be taken lightly. This part of the statement of the witness has specifically and pointedly placed before me. This information was given for obvious reason and, therefore, identification has to be judged with a lot of circumspection. This part of the statement of the witness has specifically and pointedly placed before me. This information was given for obvious reason and, therefore, identification has to be judged with a lot of circumspection. Besides, PW-9 had clearly admitted that there was no source of light in his cross-examination. Witness Jagat Ram has unequivocally given his statement that “KADHORA KE DARVAJA PER KOI ROSHANI NAHI HO RAHI THI”. Commenting on the identification of the articles, learned counsel has placed the memo of identification in support of his argument that a bare perusal of the memo of identification shows that one Kardhani alleged to be stolen kept for identification was not of the same design as well as the Kardhani, Payal and other silver articles were not absolutely similar. Though the memo shows that effort was made to mix it with some what similar jewellery but in her statement the witness has admitted in her cross-examination that she could identify her Kardhani because it was of a different design from the other one mingled with the articles at the time of identification. 12. PW-2 Dharmi has stated in her cross-examination that the assailants had concealed their faces by Dhatas and were not visible. In the circumstances, it is emphatically submitted that identification after lapse of 47 days that too of the accused who were committing the offence in the darkness of the night without any source of light in the month of December after concealing their faces can by no stretch of imagination be sufficient to uphold the conviction. 13. It is also argued that Sri A.K. Pandey APO PW-20 was examined to prove the identification but the Magistrate who conducted the identification has not been examined. Statement of PW-3 Smt. Hemwati is placed before me. Sri Kamal Krishna, Senior Advocate has laid emphasis on the cross-examination where she had admitted that 5 other Kardhani were mixed. Her own Kardhani was of different style and design and that is why she was able to recognize her own. Similarly his statement regarding five pair of Bora, in one which belong to her, there was thread of different colour whereas the other four has thread of another colour which enabled her to recognize the articles easily. Her own Kardhani was of different style and design and that is why she was able to recognize her own. Similarly his statement regarding five pair of Bora, in one which belong to her, there was thread of different colour whereas the other four has thread of another colour which enabled her to recognize the articles easily. In the circumstances, Sri Kamal Krishna, Senior Advocate has stressed that the identification of the accused as well as alleged stolen articles is without any evidence and the evidence produced by the prosecution is not worthy of any credence. 14. Learned A.G.A. has tried to reply to the next argument of Sri Kamal Krishna that PW-6 Savaiya that he had come on a number of occasions for identification and he had gone inside the jail but not able to identify some of the accused. Learned A.G.A. has placed the statement of PW-7 Arjun in reply to the argument of Sri Kamal Krishna regarding presence of light. However, the statement regarding PW-7 pointed out by learned A.G.A. is regarding accused Rajjan and Rameshwar. 15. After hearing the learned counsels for the parties at length and also considering the evidence at hand, it is clear that only evidence against the appellant is that of identification by eight witnesses. I am conscious that solitary evidence of identification is a weak evidence and while adjudging a case on the basis of identification alone it is to be done with great care. 16. The Apex Court in the case of Soni v. State of Uttar Pradesh, (1982) 3 SCC 368 (1), had held that the identification parade based on identification of five witnesses which was conducted after lapse of 42 days from the date of arrest of the appellant throws grave doubt on such identification and cannot be sole ground for conviction. 17. In the instant case admittedly, the identification was after 47 days and the appellant was identified by 8 witnesses i.e. all the witnesses who had gone to identify. 17. In the instant case admittedly, the identification was after 47 days and the appellant was identified by 8 witnesses i.e. all the witnesses who had gone to identify. This fact itself creates a suspicion that all of them who had seen the accused in the month of December at mid night with Dhatas around their faces, specially when the assailants were unknown, could have such a good perception on faces visibility and foolproof memory to identify the appellant correctly coupled with the fact that the appellant was taken into custody on 20.12.1978 whether he was kept Baparda or not and the Magistrate who was the independent person has not been examined. I do not think it to be proper to convict the appellant on only this solitary evidence. It is some what difficult to comprehend that all the accused who were sent up for trial, were acquitted holding that the evidence of identification was not enough for one or the other reason. Admittedly, the offence was not committed by the appellant alone but with other persons to whom the prosecution claimed participated in the crime with the present appellant. Recovery of the articles is also not very convincing for the reason that the identifying witness had admittedly stated that her jewellery was of a different design, therefore, she was able to identify when the same was put up for identification. Besides, the Apex Court in the case of Amar Singh and others v. State of Madhya Pradesh, AIR 1982 SC 129 , had declined to convict the appellant under Section 395 I.P.C. on the basis of presumption that the recovery of the stolen article was made from him. No doubt evidence of identification parade is in vogue since a very long time and this practice of test identification as a mode of identifying an unknown person charged of an offence is an age-old method and also it has worked well for the past several decades as a satisfactory mode and a well founded method of criminal jurisprudence. If a conviction is to be upheld only on the solitary evidence of identification, it has to be judged with great caution, circumspection and care. 18. If a conviction is to be upheld only on the solitary evidence of identification, it has to be judged with great caution, circumspection and care. 18. The challenge made by learned counsel for the appellant and the grounds on which the evidence of identification parade has been challenged, cannot be said to be without any basis and I do not think it safe to record a judgment of conviction on this evidence alone. 19. In view of what has been stated above, I do not think that the judgment of conviction can be upheld. The appeal is allowed. The judgment and order dated 12.3.1981 passed by the IIIrd Additional Session Judge, Hamirpur is set aside. The appellant is acquitted. He need not be present in the Court. ———