JUDGMENT Hon’ble S.C. Agarwal, J.—This is an appeal against judgment and order dated 2nd February, 1982 passed by the 7th Addl. Sessions Judge, Mainpuri in S.T. No. 262 of 1977 whereby the appellants Bhagwan Das and Janjali were convicted under Section 395 IPC and sentenced to undergo R.I. for five years. 2. During appeal, appellant No. 1 Bhagwan Das had died as per the report dated 7th August, 2009 of C.J.M. Mainpuri. Thus the appeal in respect of appellant Bhagwan Das abates and we are concerned only with appellant No. 2 Janjali. 3. The incident took place in the night of 11/12.7.1974 at 11 p.m. The FIR was lodged on 12.7.1974 at 6.40 a.m. by Bhojraj Singh (P.W. 1). 4. The prosecution case, in brief is that on 11.7.74 at about 11 p.m. in Village- Murli, hamlet of Village- Semar, P.S. Kuraoli, District-Mainpuri, Bhojraj Singh was taking his meals whereas his sister was sitting by his side, a lantern was lit. About 8-10 dacoits armed with country-made pistol and lathi committed dacoity in the houses of Bhojraj Singh, Ram Bharosey, Mathuri and Nawab. For about half an hour, the dacoits looted the property. Sri Bhawani set Mustard Turi on fire causing sufficient light. On alarm being raised, the villagers assembled and the dacoits made good their escape with looted property. Bhojraj Singh loged the FIR next morning at 6.40 a.m. at the police station. During investigation, appellant Janjali and some others were arrested and made ba-parda. Janjali was arrested on 12.10.1974. He was put up for identification on 17.12.1974 and was correctly identified by Bhojraj Singh (P.W. 1), Nawab Singh (P.W. 2), Bhawani (P.W. 3) and Ram Bharosey (P.W. 4). After investigation, charge-sheet was submitted. 5. Charge under Section 395 IPC was framed against the appellant Janjali. He denied the charge and claimed to be tried. 6. The prosecution examined six witnesses in this case. Bhojraj Singh (P.W. 1), Nawab Singh (P.W. 3), Bhawani (P.W. 2) and Ram Bharosey (P.W. 4) are the witnesses of fact and identification. Ramesh Chandra Saxena (P.W. 5) is a formal witness. He has proved the signatures of Sri S.K. Maheshwari, Executive Magistrate on the identification memos Ext. Ka-4 to Ka-7. Shishu Pal Singh (P.W. 6) is the Investigating Officer. 7. In statement under Section 313 Cr.P.C., appellant Janjali denied the prosecution allegation and claimed that he was shown to the witnesses. Ramesh Chandra Saxena (P.W. 5) is a formal witness. He has proved the signatures of Sri S.K. Maheshwari, Executive Magistrate on the identification memos Ext. Ka-4 to Ka-7. Shishu Pal Singh (P.W. 6) is the Investigating Officer. 7. In statement under Section 313 Cr.P.C., appellant Janjali denied the prosecution allegation and claimed that he was shown to the witnesses. However, the defence did not adduce any oral evidence. 8. Relying on the prosecution version, the learned Sessions Judge convicted the appellants Bhagwan Das and Janjaji under Section 395 Cr.P.C. and sentenced them as aforesaid. 9. I have heard Sri J.S. Kasyap, learned counsel for the appellants, learned AGA for the State and perused the trial Court’s record. 10. It is submitted by learned counsel for the appellant Janjali that there is no evidence on record to show that immediately after arrest, the appellant was made ba-parda and kept ba-parda through out till identification parade was held. It is further submitted the appellant was not made ba-parda and was shown to the witnesses at the police station. 11. Learned AGA, however, supported the impugned judgment. 12. Out of four witnesses, two had identified and appellant Janjali in Court. Bhawani (P.W. 2) did not identify Janjali in Court. He only identified co-accused Bhagwan Das. Similarly, Nawab (.P.W. 3) identified Bhagwan Das only but did not identify the Janjali, though he stated that he had identified someone looking like Janjali in Jail. 13. Bhawani (P.W. 2), however admitted in cross-examination that after 4-5 days from dacoity, it had come to this knowledge that dacoits have been caught by the police. The police brought three dacoits to the village. 14. However, Bhojraj Singh (P.W. 1) and Ram Bharosey (P.W. 4) identified appellant Janjali in Court and stated that Janjali was involved in dacoity. They did not know him before dacoity. They had seen him during dacoity and thereafter at the time of Test Identification Parade. 15. Shishu Pal Singh (P.W. 6), Investigating Officer has stated that Janjali was arrested on 12.10.1974 by police of Alau. This witness was not present at the time of arrest of Janjali. The police officer, who arrested Janjali had not been examined in evidence. No evidence to the effect that at the time of arrest, Janjali was made ba-parda has been adduced by the prosecution. This witness was not present at the time of arrest of Janjali. The police officer, who arrested Janjali had not been examined in evidence. No evidence to the effect that at the time of arrest, Janjali was made ba-parda has been adduced by the prosecution. In the absence of link evidence showing that Janjali was made ba-parda at the time of arrest, and continuously remained ba-parda till Test Identification Parade was held, the evidence of identification cannot be relied upon. When the prosecution is based solely on the identification evidence, it was incumbent on the prosecution to prove beyond reasonable doubt that the appellant was made ba-parda at the time of his arrest and no person was allowed to look of his face and that he was not shown to the witnesses. In the absence of link evidence, the evidence regarding identification of appellant in Court as well as in jail at the time of Test Identification Parade cannot be relied upon. 16. The appellant was arrested on 12.10.1974. Test Identification Parade was held on 17.12.1974 i.e. after a delay of 66 days. No explanation for this delay of 66 days has been furnished by the prosecution. In case of Hazari v. State of U.P., 1989 (26) ACC 632, this Court held that delay in holding Test Identification Parade is not by itself a ground to discard it but it minimises its value and the delay must be explained convincingly. 17. In Rameshwar Singh v. State of J & K, 1971 (8) ACC 325 (SC), Hon’ble Supreme Court has held that identification of the accused by the witnesses soon after the fromer’s arrest is of vital importance because it furnishes to the investigating agency the assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witnesses later in Court at the trial. 18. In Wasif Haider v. State of U.P., 2009(6) ADJ 29 (NOC)(DB), a Division Bench of this Court held that : “the unexplained delay of 55 days in holding test identification parade of accused Mumtaj alias Maulana and Wasif gives rise to the suspicion that the witnesses did not attend the test identification parade earlier deliberately as by that time, they were not confident of recognising them”. 19. 19. In the instant case, the prosecution case has not furnished any explanation for delay in holding test identification parade. This delay is fatal to the prosecution and it gives rise to the suspicion that the delay was caused as the witnesses were not confident of recognising the dacoits. 20. I have already held that the prosecution did not adduce any evidence to show that the appellant was made ba-parda immediately after arrest. In the case of Wasif Haider v. State of U.P. (supra), this Court held : “Complete absence of link evidence compels us not to accept the authenticity of the identification evidence. If the appellants were not kept baparda, the evidence of previous test identification parade and subsequent identification of appellants in Court loses it’s importance and credibility. Learned Sessions Judge has completely ignored these aspects of the case”. 21. In Rajnath Singh v. State of U.P., 1998 A Cr R 97, a general description of the Dacoits was given in the FIR and the special features of each of the appellants as mentioned by the Magistrate conducting identification parade were not stated in the FIR or to the Investigating Officer and the identification took place after two months. The performance of witnesses in the identification parade was found to be doubtful. 22. In the instant case also no hulia or special features of the dacoits was mentioned in the FIR or in the statements of witnesses recorded under Section 161 Cr.P.C. and the identification took place after more than two months. Thus, the identification of the appellant becomes doubtful. 23. Moreover, the Magistrate, who conducted the Test Identification proceedings in jail has not been examined by the prosecution. Only signatures of the Executive Magistrate have been proved by P.W. 5. It was also incumbent that the prosecution to examine Executive Magistrate, who had conducted the identification proceeding. His non-examination is also fatal to the prosecution. 24. In view of the above discussion, I have come to the conclusion that conviction of the appellant under Section 395 IPC cannot be sustained and is liable to be set aside and the appeal deserves to be allowed. The Criminal Appeal is allowed. Judgment and order dated 2nd February, 1982 passed by the learned Sessions Judge is set aside. The appellant is given benefit of doubt and is acquitted for the offence under Section 395 IPC. The appellant is on bail. The Criminal Appeal is allowed. Judgment and order dated 2nd February, 1982 passed by the learned Sessions Judge is set aside. The appellant is given benefit of doubt and is acquitted for the offence under Section 395 IPC. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. Let copy of this judgment be certified to the trial Court alongwith the trial Court’s record within a week. ————