JUDGMENT Hon’ble Vinod Prasad, J.—A set of appellants Abrar Ahmad and Ram Pal @ Baboo have approached this Court in its appellate jurisdiction being aggrieved by their conviction under Section 395 I.P.C. and impose sentence of five years R.I. imposed by XIIIth Additional Session’s Judge, Kanpur vide impugned judgment and order dated 22.4.92 recorded in S.T. No. 235/M of 1981, State v. Satya Narain Singh and others, relating to P.S. Bidhnoo, District Kanpur. 2. Briefly narrated prosecution version against the appellants, as was scribed in written report Ext. Ka-1 by Babu Ram, was that in the night of 2/3 January 1981, in between 11.30 to 12.00 mid night, five named accused alongwith 7/8 other miscreants raided house of the informant Babu Ram, Mauji Lal, Siya Ram and Mohan Lal in village Beni Purwa Hamlet of Pipergaon, P.S. Bidhnoo and committed dacoity in these houses armed with deadly and blunt weapons. During course of the dacoity, four persons Siya Ram, Savitri, Babu Ram and Mohan Lal had sustained injuries. Informant, after scribing his F.I.R. Ext. Ka-1, covered a distance of eight miles and lodged it at police station Bidhnoo on 3.1.1981 at 8.15 a.m. against the named dacoits who were Satya Narain Singh (armed with Kulhari “Axe”), Ramraj Singh and Ashok Singh (both armed with lathi), Jagdish Yadav (armed with gun) and Ram Pratap Singh (armed with hockey) and unnamed dacoits. The incident is alleged to have been witnessed in the light of torches, lantern and stack of hay pyre, which was ignited during commission of dacoity. During investigation, out of unnamed three of the accused Abrar Ahmad and Ram Pal Singh @ Baboo, (both appellants) and one Balwan Singh were apprehended and their identification was conducted on 4.2.1981 by P.W. 4 Sri G.P. Thaparial, Special Executive Magistrate. Babu Ram P.W. 1 and Sohan Lal P.W. 2 have correctly identified both the appellants without committing any mistake. 3. Registration of the crime was done by preparing Chik F.I.R. Ext. Ka-6 and relevant GD entry. Investigation into the offence commenced and ultimately, accused persons were charge-sheeted on 14.2.81 for offences, under Sections 395, 397 IPC vide Ext. Ka-24. Another accused Ashok Singh was separately charge-sheeted on 28.2.81 vide Ext. Ka-25. Identification memo of appellants is Ext. Ka-2. 3. Registration of the crime was done by preparing Chik F.I.R. Ext. Ka-6 and relevant GD entry. Investigation into the offence commenced and ultimately, accused persons were charge-sheeted on 14.2.81 for offences, under Sections 395, 397 IPC vide Ext. Ka-24. Another accused Ashok Singh was separately charge-sheeted on 28.2.81 vide Ext. Ka-25. Identification memo of appellants is Ext. Ka-2. XIIIth Additional Session’s Judge, Kanpur Nagar in the concerned S.T. No. 235 of 1981 charged all the accused under Sections 395/397 I.P.C., which were read out and explained to the accused, who denied the same and claimed to be tried. 4. In its endeavour to bring home accused guilt, prosecution in the Session’s Trial tendered 11 witnesses out of whom Babu Ram P.W. 1 and Sohan Lal P.W. 2 were the witnesses of fact. Hari Chand Singh P.W. 3, Sri G.P. Thaparial P.W. 4, Ghulam Ghaus P.W. 5, HC Aparbal Singh P.W. 6, Nawal Kishore Shukla P.W. 7 Dr. Ramesh Chandra Shukla P.W. 8, S.S. Singh, S.I. P.W. 9, Mahipal Singh P.W. 10 and Narendra Singh S.I. P.W. 11 were the formal witnesses. In their statements under Section 313 Cr.P.C. all the accused persons denied participation in dacoity and also pleaded that they were shown to the witnesses. In their defence accused examined Dr. A.K. Mishra as D.W.1. 5. XIIIth Additional Session’s Judge, Kanpur Nagar through impugned judgment and order concluded that prosecution had failed to established charges against five named accused and therefore, acquitted all of them namely, Satya Narain, Ram Raj Singh, Jagdish Yadav, Ram Pratap Singh, Balwan Singh and Ashok Singh. It also concluded that prosecution failed to bringing home guilt of accused Balwan Singh and therefore, acquitted him as well. Only on the basis of identification of the two appellants by P.W. 1 and P.W. 2 that the trial Court concluded that prosecution had established it’s case beyond reasonable doubt and therefore convicted both the appellants under Section 395 I.P.C. only while acquitting them for the second charge under Section 397 I.P.C. Hence, this appeal by the convicted accused against the said conviction and imposed sentence of five years R.I. 5. Before proceeding further medical examination reports of the injured persons exhibited as exhibits Ka-11, Ka-12, Ka-13, Ka-14 and Ka-15 are reproduced below: Exhibit Ka-11 Examined Sri Siyaram S/o Sri Dhannal Pal aged about ...(paper torn) R/o Benipurwa post-pipergawan P/S Bidhnoo Distt. Before proceeding further medical examination reports of the injured persons exhibited as exhibits Ka-11, Ka-12, Ka-13, Ka-14 and Ka-15 are reproduced below: Exhibit Ka-11 Examined Sri Siyaram S/o Sri Dhannal Pal aged about ...(paper torn) R/o Benipurwa post-pipergawan P/S Bidhnoo Distt. Kanpur on 3.1.1981 at 10.30 a.m. B/B: Sri Prem Shankar Const. C.P. No. 1721 P/S Bidhnoo. M.I.:- A black mole on the right side of upper part of the nose. Injury:- A gun-shot wound on the upper part of the right side of the face. There is blackening & tattooing and scorching present. Opinion:- injury is simple. Caused by fire-arm object. Duration:- less than half day. Exhibit Ka-12 Examined Smt. Savitri W/o Sri Babu Ram aged about ....(paper torn) years R/o village-Benipurwa Post- Piper gawan P/S Bidhnoo Distt.-Kanpur on 3.1.1981 at 10.15 a.m. B/B:-Prem Shankar Const. C.P. 1721 P.S. Bidhnoo. M.I.:- Black mole on the right side of chest. It is 2.5 c.m. below right collar bone. Injury.—(1) Double line contusion on back of right side of chest. It is 11 cm x 2 cm. It is 7 cm below right shoulder joint. (2) Contusion on the right shoulder joint in area of 6 cm x 5 cm. (3) Contusion in area of 8 cm x 2 cm on the left side of the back. It is 6 cm below left scapula. (4) Lacerated wound 1 cm x 0.2 cm on the back of middle part of middle finger. (5) Contused swelling on the right knee joint. (6) Abraded contusion on the upper part of anterior aspect of right leg. It is 2 cm x 1 cm. It is 6 cm below right knee. (7) Incised wound in the anterior aspect of right leg in the middle part. It is 1.5 cm x 0.5 cm x skin cut. Margins are clean cut. It is 14 cm above the ankle joint. Opinion:-Injury is simple. Caused by injury No. (1) to (6) by hard and blunt object Injury No. (7) is by sharp pointed object. Duration is less then half day. Exhibit Ka-13 Examined Sri Babu Ram S/o Sri Shyam Lal aged about 30 years R/o Vill. Benipurwa Post Pipergawan P/S Bidhnoo Distt.-Kanpur at 9.45 a.m. on 3.1.1981 at P.H.C. Bidhnoo Distt. Kanpur. B/B:- Sri Prem Shankar constable CP No. 1721 P/S Bidhnoo. M.I.:- A black mole on the left side of the collar bone. Duration is less then half day. Exhibit Ka-13 Examined Sri Babu Ram S/o Sri Shyam Lal aged about 30 years R/o Vill. Benipurwa Post Pipergawan P/S Bidhnoo Distt.-Kanpur at 9.45 a.m. on 3.1.1981 at P.H.C. Bidhnoo Distt. Kanpur. B/B:- Sri Prem Shankar constable CP No. 1721 P/S Bidhnoo. M.I.:- A black mole on the left side of the collar bone. It is 9 cm away from sterno clavicular joint. Injury : (1) A lacerated wound on the right side of the forehead. It is 3.5 cm x 0.5 cm x 0.5 deep. bleeding present. It is 3 cm above the right eyebrow. (2) Lacerated wound on the left side of the scalp. It is 3 cm x 0.5 cm x skin deep. bleeding present. Swelling all around the wound. It is 8 cm above the left eyebrow. (3) Lacerated wound at the base of left little finger. It is 1 cm x 0.5 cm x skin deep. (4) Contusion of the left thigh. It is 12 cm x 2 cm. Opinion:- Injury is simple. caused by hard & blunt object. Duration is less than half day. Exhibit Ka-14 Examined Sri Mohan Lal S/o Sri Pyare Lal aged about 35 years Vill. Benipurwa Post - Pipergawan P/S Bidhnoo Distt. Kanpur on 3.1.1981 at 10 a.m. B/B:- Sri Prem Shankar Const. CP No. 1721 P/S Bidhnoo. M.I.:- (1) A black mole on the front of neck. It is 2.5 cm above the supra sternal notch. Injury:- (1) Traumatic swelling on the posterior part of the left palm. It is in area of 6 cm x 4 cm. Kept under observation. (2) Abrasion on the posterior part of left forearm(upper part) it is 7 cm x 6 cm. It is just below left elbow joint. (3) Contusion 11 cm x 2 cm on the back of right side of chest. It is 16 cm below right scapula. Opinion: Injury is simple. Injury No. (1) is kept under observation and advised X-Ray. Caused by hard & blunt object. Duration less than half day. Exhibit Ka-15 Examined Sri Manji Lal S/o Sri Shyam Lal aged about 42 years R/o village Benipurwa Post-pipergawan P/s Bidhnoo Distt. Kanpur on 3.1.1981 at 9.30 a.m. B/B: Sri Prem Shankar Constable CP No. 1721 P/S bidhnoo. M.I.:- Old scar on the left side of the forehead. it is 2.5 cm x .05 cm. Duration less than half day. Exhibit Ka-15 Examined Sri Manji Lal S/o Sri Shyam Lal aged about 42 years R/o village Benipurwa Post-pipergawan P/s Bidhnoo Distt. Kanpur on 3.1.1981 at 9.30 a.m. B/B: Sri Prem Shankar Constable CP No. 1721 P/S bidhnoo. M.I.:- Old scar on the left side of the forehead. it is 2.5 cm x .05 cm. It is 3.5 cm above the left eyebrow. Injury:- (1) Multiple gun-shot injuries in area of 8 cm x 5 cm on the anterior aspect of right upper arm in lower part. These are situated just above to the right elbow joint. Blackening and tattooing and scorching present. (2) Multiple gun-shot injury in the anterior aspect of right lower arm upper part. It is in area of 14 cm x 13 cm. The swelling present. Blackening and tattooing present and scorching present. Opinion: Injury is simple Caused by fire-arm object. duration is less than half day. In the above background facts, I have heard Sri R.B. Sahai, learned counsel for the appellants and Sri Patanjali Mishra, learned AGA for respondent State. 7. Castigating the impugned judgment of conviction, it was submitted by appellant’s counsel that none of the two prosecution witnesses, who are uncle and nephew, being related, interested, inimical and partisan, can be relied upon. Their testimonies suffers from vagueness, embellishments and inconsistencies. Their versions were discarded in respect of named five accused persons and therefore, trial Judge erred in relying upon their testimonies in respect of unknown accused persons. It was next submitted that it is preposterous to cogitate that an unknown accused will commit dacoity without undertaking natural precaution of veiling their faces only to be identified by the witnesses. It is further submitted that none of the two appellants were assigned any specific role or weapon and therefore, their identification after a gap of a month is very unconvincing and should not be believed. He further submitted that if six of the accused including Balwan Singh @ Baboo, who was also put up for identification alongwith the appellants, were acquitted, the same benefit should be conferred on the appellants without any specific role, specific assertion for their participation in the crime. He further submitted that if six of the accused including Balwan Singh @ Baboo, who was also put up for identification alongwith the appellants, were acquitted, the same benefit should be conferred on the appellants without any specific role, specific assertion for their participation in the crime. No looted money was recovered from their possession and appellants were never charged under Section 412 I.P.C. It is further submitted that the trial Judge itself has recorded contradictory findings and impugned judgment suffers from the said vice. It is further submitted that the appellants had remained in jail for more than four years and therefore, in case they are not given acquittal on the merits of the appeal, their sentences be reduced to the period of imprisonment already undergone by them. In this respect learned counsel relied upon a communication received from Superintendent District Jail, Kanpur Nagar, dated 13.10.2011 wherein it is mentioned that appellant Abrar Ahmad had already remained in jail for four years three months and two days. It was submitted that maximum sentence is five years and it is a fit case for acquittal. 8. Learned A.G.A. conversely submitted that so far as two appellants are concerned, trial Judge had scanned evidences correctly and since they were identified by the two fact witnesses P.W. 1 and P.W. 2 and since, after commission of the crime till holding of test identification on 4.2.1981, they were constantly kept baparda that there is no reason to acquit them by allowing their appeal. AGA further submitted that the sentence of imprisonment is not excessive and does not call for any alteration. However, on some scores it has been fairly conceded by learned AGA that the trial Judge has recorded somewhat contradictory findings in the impugned judgment. 9. I have considered the argument raised by both the sides. Before proceeding further, some of the findings recorded by the trial Judge are sketched in seriatum herein below. First of all, trial Judge had considered the case of five named accused persons. His discussion starts from page 12. Trial Judge recorded a finding that “ So at the very outset, it looks doubtful that these accused persons will commit dacoity without taking any precaution to conceal the identity. All these accused persons are known to the complainant from before hand and so it looked preposterous that they will not cover their faces while committing dacoity. Trial Judge recorded a finding that “ So at the very outset, it looks doubtful that these accused persons will commit dacoity without taking any precaution to conceal the identity. All these accused persons are known to the complainant from before hand and so it looked preposterous that they will not cover their faces while committing dacoity. There is no case set-up as such either in the F.I.R. or in the oral testimony.” After recording such a finding, trial Judge went on to observations that “No independent witness whatsoever has been produced. The P.W. 1 is the complainant and the P.W. 2 is his nephew who are all along interested witnesses so far the named accused persons are concerned.” It further went on to observe “Besides, prosecution case suffers from vagueness. In the F.I.R. no specific mention has been made as to how the named dacoits proceeded to commit dacoity. The witnesses could also not tell us to whose house was first looted and in what rotation.” After recording aforesaid opinions, trial Judge adverted itself to the F.I.R. and came to the conclusion that it does not inspire any confidence and “all this delay casts a doubt in my mind about the truthfulness of the prosecution version.” 10. By opinions aforesaid, trial Judge acquitted all the five named accused persons by holding “In the instant case the participation of the named accused normally is not proved beyond reasonable doubt and hence it would be just and proper to give the aforesaid accused the benefit of doubt.” After dealing with the case of those five named accused, trial Judge took up the case of accusedBalwan Singh, who was arrested by P.W. 11 S.I. Narendra Singh on 19.1.1981 and was lodged in police lock-up the same day at 8.20 p.m. vide GD number 27, Ext. Ka-23. He was taken out of the police lock-up on the following day at 7.30 a.m. vide Ext. Ka-9, G.D. No. 22. Constable Hari Nandan Singh P.W. 3 escorted him to lodge him in jail. He could be lodged in jail only in the evening on 21.1.1981. Ka-23. He was taken out of the police lock-up on the following day at 7.30 a.m. vide Ext. Ka-9, G.D. No. 22. Constable Hari Nandan Singh P.W. 3 escorted him to lodge him in jail. He could be lodged in jail only in the evening on 21.1.1981. Trial Judge approved the defence of the appellant that during this period he was not kept bapardah and he was shown to the witness and agreed that defence plea is well merited and even in on remand sheet it is not mentioned that Balwan Singh was brought before Magistrate under veil. In this connection trial Judge relied upon statement of D.W.1. Sri A.K. Misra, Assistant Jailor, who had also testified that the aforesaid accused was not brought to the jail in bapardah. After opinioning thus, trial Judge concluded “For the aforesaid reasons I am of the opinion that there is every doubt about the fairness of the Test Identification and therefore, accused Balwan is entitled to get benefit of doubt.” 11. In such a view, once the trial Court was of the opinion that the entire prosecution story does not inspire any confidence, test identification of one of the accused Balwan Singh suffers from criticism of accused being shown to the witnesses, he should have adopted caution in respect of other accused persons. False implication of five of the named accused, identifying an accused, who was shown to the witnesses prior to his test identification erodes credibility of prosecution story and truthfulness of it’s witnesses. In this connection, there was other reason for the trial Judge to give benefit of pit falls of the prosecution case to the two appellants and that was that both the appellants were arrested by S.I. S.S. Singh P.W. 9 on 16.1.81 at 11.00 p.m. They were lodged in police lock-up and were taken out at 9.10 a.m. on the following day vide GD entry number 18 Ext. Ka-5. During this period there was sufficient occasion and time for the prosecution to show them to the witnesses. Further trial Judge itself was of the opinion that FIR is delayed for which no sufficient explanation was forthcoming, which casted a doubt on the prosecution story. 12. I myself have gone through the prosecution version. It does not inspire any confidence at all so far as participation of two appellants are concerned. They are not named in the FIR. Further trial Judge itself was of the opinion that FIR is delayed for which no sufficient explanation was forthcoming, which casted a doubt on the prosecution story. 12. I myself have gone through the prosecution version. It does not inspire any confidence at all so far as participation of two appellants are concerned. They are not named in the FIR. Prosecution has not brought on the record any material as a link evidence to show that in what manner and under what circumstances and for what reason, they were involved in the dacoity and participated in the crime. On the said aspect of the crime prosecution version is completely silent. This in my opinion does not inspire any confidence. No recovery has been made from the possession of the appellants. None of the fact witnesses have been able to divulge as to what weapon these appellants were carrying and in the dacoity what role had been played by them. As has been observed by the trial Judge prosecution has not been able to explain the sequence in which the incident was alleged to have occurred in the four houses. As observed above, it will be very weird for this Court to conclude that an unknown persons will participate in dacoity without sufficient precaution to cover up his identity. Both the appellants seems to have already undergone four years of imprisonment as in respect of appellant Abrar Ahmad, there is a report from Superintendent District Jail, Kanpur Nagar. So far as appellant Ram Pal @ Baboo is concerned, there is no report on the record regarding period of his incarceration. 13. In view of above discussion, Since I am of the opinion that the two appellants cannot be convicted, as the prosecution has not been able to satisfy convincingly about it’s allegation and their participation in the crime seems to be doubtful that I allow the appeal and set aside appellant’s conviction for offence under Section 395 I.P.C. and acquit them of that charge. Appellant Abrar Ahmad is in jail, he shall be set at liberty forthwith from incarceration unless he is incarcerated in some other crime. Appellant Ram Pal @ Baboo, if in jail, be set at liberty forthwith unless he is also wanted in some other case. If the aforesaid appellant Ram Pal @ Baboo is on bail, he need not surrender, his personal and surety bonds are discharged. Appellant Ram Pal @ Baboo, if in jail, be set at liberty forthwith unless he is also wanted in some other case. If the aforesaid appellant Ram Pal @ Baboo is on bail, he need not surrender, his personal and surety bonds are discharged. Let a copy of this judgment be certified to the trial Court for its intimation. —————