JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—Appellants namely Tejpal and Hapra sons of Giri Lal and Raju son of Baboo Lal, preferred this appeal challenging their conviction and sentence awarded by IInd Additional Sessions Judge, Bijnor, videjudgment and order dated 30.9.1981, in Session Trial No. 125 of 1981, under Section 395, I.P.C. to five years R.I. 2. Occurrence is alleged to have taken place on 6.1.1981 at 2:00 a.m., Police Station and Sub-District Najibabad, District Bijnor, in the house of first informant, Professor R.N. Mehrish. 3. First information report was lodged on 6.1.1981 at 3:30 a.m. The first informant PW-4 was posted as Head of Economics Department in Sahu Jain Decree College, Najibabad, Bijnor. According to F.I.R, armed dacoits had entered the house and looted articles after causing injuries to first informant and his wife Rekha Mehrish PW-6. Hearing shrieks, the Chaukidar and some witnesses from crusher realized the situation and came to his rescue and chased away the dacoits. Articles looted were mentioned in the first information report including H.M.T. wrist watch. 4. Accused Raju was arrested along with H.M.T. (Avinash) wrist watch on 5.2.1981. On interrogation, accused Raju confessed before the police that wrist watch was looted in the dacoity in Nazibabad. It was appellant, Raju, who disclosed complicity of other appellants namely Tejpal and Hapra, who were also arrested on the same day. According to arrest/recovery memo, accused were made Baparda by using red, yellow and blue colour CHADAR. 5. Injuries of first informant, PW-4 and his wife PW-6 were examined on 6.1.1981, which are Exts. Ka-13 and 14. Injuries found on their persons by the doctor, were caused by blunt object. Injuries of Sri R.N. Mehrish examined by the doctor on 6.1.1981 at 5:00 p.m. are detailed below : B/B Inspector Incharge Sri B.B. Lal. P.S. Najibabad. M.I. Black mole at the root of neck posterior part right side. Injuries.—(1) Lacerated wound forehead middle 4 cm x 1/2 cm x bone deep 6 cm above line of eyebrows. Margins irregular and contused. Bleeding present. (2) Lacerated wound left side forehead 4 cm x 1/2 cm x bone deep 6 cm above left eyebrow. Margins irregular and contused. Bleeding present. (3) Lacerated wound 5 cm x 1/2 cm x scalp deep over occipital region of skull left side 10 cm above left ear. Margins irregular, bleeding present. Margins irregular and contused. Bleeding present. (2) Lacerated wound left side forehead 4 cm x 1/2 cm x bone deep 6 cm above left eyebrow. Margins irregular and contused. Bleeding present. (3) Lacerated wound 5 cm x 1/2 cm x scalp deep over occipital region of skull left side 10 cm above left ear. Margins irregular, bleeding present. (4) Contusion left side chest 10 cm x 2 cm, 10 cm lateral to left nipple lateral. (5) Abrasion 2 cm x 2 cm in front of right knee joint. Pulse-89/mt. B.P. 128/74 mmhg. Patient conscious, vomiting present. Injury Nos. 1, 2, 3 and 4 kept U.O. Adv. X-ray. Injury No. 5 simple. Duration fresh, caused by blunt object. Injuries of Rekha Mehrish examined by the doctor on 6.1.1981 at 5:40 a.m. are detailed below : B/B Inspector Incharge Sri B.B. Lal. P.S. Najibabad. M.I. Raised brownish mole left side face 2 cm lateral to left eye. Injuries.—(1) Lacerated wound 7 ½ cm x 1 cm x bone deep oblique downward toward in the parietal region of skull in middle. Margin irregular and contused, bleeding present. Adv. X-ray. (2) Lacerated wound 7 cm x 1/2 cm x bone deep over left parietal region of skull. Just behind injury No. (1). Margin contused. Bleeding present. Adv. X-ray. (3) Lacerated wound over anterior medial aspect of distal phalynx of index finger, measuring 3 cm x 3/10 cm x bone deep. Bleeding present. Injury kept U.O. Adv. X-ray (Left hand). Injury Nos. 1, 2 and 3 kept U.O. Adv. X-ray. Duration fresh, caused by blunt object. 6. On perusal of first information report, it transpires that accused were seen in torch light. It was stated in the report that first informant will be able to recognize assailants if they are arrested. 7. The only evidence against appellants is of identification, which was conducted on 3.3.1981. Five persons are said to have correctly identified them. However, out of five witnesses, three witnesses were examined on behalf of prosecution. 8. The prosecution examined Ram Bahadur as PW-1, Head Constable Raj Singh PW-2, Head Constable Kedar Singh PW-3, R.N. Mehrish, first informant PW-4, Sri N.P. Asthana S.D.M. PW-5, who conducted identification Parade, Smt. Rekha Mahrish PW-6, Hanif PW-7 is witness of recovery, Kanhai Singh PW-8, Sri V.V. Lal, S.O. Investigating Officer PW-9, Jay Prakash PW-10, Court Hoharrir posted in the Court of S.D.M. 9. Identification memos Ext. Identification memos Ext. Ka-8 and Ka-9, have been proved by Sri N.P. Asthana, S.D.M. 10. Ms. Renu Srivastava, Advocate, was appointed as amicus curiae on behalf of appellants on 24.10.2009. She has argued this appeal for two days. 11. Submission is that no description of the assailants was given at the time of lodging of first information report and specification relating to assailants is also completely missing. It is evident that first informant had not seen them. Therefore, first information report was lodged against unknown persons. Name of Ram Bahadur, Chaukidar, is also missing from first information report though it is stated that a number of witnesses from crusher and other neighbouring house had arrived at the time of occurrence and besieged assailants which resulted in their running away. None of these witnesses were produced or examined in the Court. 12. Submission is that accused were labourers and they were working in the nearby fields since last few months, therefore, first informant or other witnesses who claimed to have identified the accused, had seen them. Accused were constantly working in the vicinity. Besides, they were photographed in jail and shown to witnesses. 13. Ms. Renu Srivastava, has pointed out that accused had also brought this fact to the notice of S.D.M. at the time of identification, which is very well mentioned in identification memo, therefore, conviction on solitary evidence of identification is uncalled for. None of the looted articles have been recovered save H.M.T. wrist watch from possession of appellant Raju, but it has also been disbelieved since there is no conviction under Section 412 I.P.C. In fact, they were working in the nearby fields and they were picked up by police only to appease first informant, teachers and other employees of the college where PW-4 was working. 14. Another glaring fact pointed out by appellants’ counsel regarding identification of accused Hapra and Tejpal is that their specific mark of identification was mentioned in identification memo. When this fact was pointed out while cross examining witnesses, they admitted those marks of identification. PW-4 has admitted those specific mark on the face of Raju with smallpox, Tejpal with specific mark on his lips and similarly a mole on the forehead near left ear below, another mole on right cheek and some white spot in between two lips. When this fact was pointed out while cross examining witnesses, they admitted those marks of identification. PW-4 has admitted those specific mark on the face of Raju with smallpox, Tejpal with specific mark on his lips and similarly a mole on the forehead near left ear below, another mole on right cheek and some white spot in between two lips. These features have been mentioned in identification memos but on questioning the S.D.M., he has stated unequivocally that other persons mixed in identification Parade, had specific these marks of identification. 15. Lastly, it is argued that according to prosecution, five persons had gone to identify the accused in identification Parade. All of them were able to identify but two of the said witnesses have not been examined by prosecution. It is also true that two identification is ‘too good’ to be believed. 16. Ms. Renu Srivstava, has placed reliance on decision of the Apex Court, Nirmal Pasi and another v. State of Bihar, JT 2002 (6) SC 28, after downloading from internet, wherein conviction solely on the basis of identification without any recovery of stolen articles or jewellery was set aside. Test identification Parade was also not put to the accused-appellants in the statement under Section 313, Cr.P.C. 17. In the instant case bare perusal of identification memos, it is evident that they had specifically objected and disclosed to S.D.M. that they were shown to the witnesses and they were photographed. 18. Next case relied upon by appellant’s counsel is State of Rajasthan v. Netrapal and others, (2007) 4 SCC 45 . 19. Learned A.G.A. has supported identification memos and stated that accused were identified by witnesses in the torch light besides the Investigating Officer had shown bulb in the site plan, therefore, the fact is that appellants were correctly identified and it is sufficient to convict appellants. 20. After hearing counsels for the respective parties at length and going through the entire record, I agree with submission of counsel for appellants that there is no mention of bulb in the first information report, which has only been shown in the site plan by the Investigating Officer with a view to substantiate the fact that witnesses recognized assailants in the light of bulb besides torch light. It is also true that appellants had clearly and specifically mentioned to the S.D.M. that they were photographed at police station and shown to the witnesses. It finds place in the identification memo itself. 21. In view of this fact, which is admitted by S.D.M. in his statement as well as by the accused in their statement under Section 313, Cr.P.C. that they were photographed and shown to the witnesses, conviction on solitary evidence of identification has to be made with great circumspection and caution. This is yet another circumstance, which cannot be overlooked that accused Hapra and Tejpal, who are real brothers, were arrested on disclosure of their names by co-accused before police. Nothing was recovered from their possession to substantiate their participation in crime. 22. Taking into consideration all these aspects and the fact that appellants Tejpal and Hapra were not allowed bail during the trial, this was only Raju, who was on bail. Subsequently, they continued to be in jail for a considerable period of time till filing of the appeal. Conviction and sentence of appellants is set at naught. Sureties and bail bonds of the appellants are discharged. The instant appeal is allowed. ————