JUDGMENT Hon’ble Vinod Prasad, J.—The sole appellant Satya Pal is aggrieved by his conviction under Sections 395, 397 I.P.C. and imposed sentence of seven years RI therefor recorded by IInd Additional Session’s Judge, Rampur vide impugned judgment and order dated 27.6.1981 passed in S.T. No. 405 of 1980, State v. Satya Pal. To complete chronology of conviction and sentence, it is recorded that two other co-accused Dharam Pal and Bhopali were acquitted of aforesaid charges by the impugned judgment while a fourth accused Rajjan was discharged at the stage of framing of charge itself by the learned trial Judge 2. According to the prosecution version, as was orally dictated at police station Kotwali, district Rampur by the informant Irshad Husain, on 29.7.1980 at 2.05 a.m., which was recorded as crime No. 433 of 1980, under Sections 395, 397 I.P.C. where that in the intervening night between 28/29.7.1980 at mid night, 12 a.m., ten or twelve dacoits committed dacoity in the informant’s house when he alongwith his father Imdad Husain, brother Nabi Mohammad, Faiyyaz, brother-in-law Raees, informant’s wife Khair-Un-Nisan and his mother were sleeping in his house. A lantern was lighting in his Courtyard (Aagan). Dacoits were armed with guns, country made pistols and lathies. During commission of dacoity, Faiyyaz and Irshad Husain were shot at by the dacoits whereas Nabi Mohammad and Khair-Un-Nisan were belabored by lathies. Informant however made his escape good from the spot and raised hue and cry, which attracted co-villagers Chhotey, Shahid, Gulam Mohammad, Ali Bahadur and Ali Mohammad. Two or three gathered witnesses had torches with them. Shahid S/o Bhoorey meanwhile had put the thatch to fire to lighten up the incident place. Dacoits committed dacoity of ornaments and drapers of informant’s house inmates and decomposed with said bounty. While escaping from the incident scene miscreants had also resorted to firing with loud abuses. In the available light, one of the dacoit, who had veiled his face by a towel was identified as Bhopali (acquitted accused) as his veiling towel attire had untied. After commission of dacoity, informant Irshad Hussain had rushed to the Police station Kotwali and lodged FIR just after two hours at 2.05 a.m. naming Bhopali, as one of the dacoits, with ten or twelve other dacoits. 3. Investigation of the crime was commenced by S.I. Begraj Singh (P.W. 8), after FIR was registered by Head Constable Deshram Singh vide Ext. 3. Investigation of the crime was commenced by S.I. Begraj Singh (P.W. 8), after FIR was registered by Head Constable Deshram Singh vide Ext. Ka 7. 4. P.W. 8 interrogated Irshad Hussain informant and inked his statement and thereafter, he proceeded for the hospital where he recorded the statements of Faiyyaz, Nabi Mohmmad and Imdad Hussain. From the Hospital I.O came to the scene of dacoity at village Atariya and there he recorded statements of witness Ali Mohammad and many others. At the pointing out of the witnesses, he conducted spot inspection and prepared site plan map Ext. Ka 8. Some of the burnt ashes material Ext. 1, were collected from the spot and recovery memo Ext. Ka 9 was prepared in that respect. I.O. also collected pellets and wads material Ext. 2 and prepared its recovery memo Ext. Ka 10. Lantern and the torches, which were alleged to have been burning at the spot during the incident were inspected by the investigation officer and were handed over after preparing its recovery memo. Same day I.O had arrested Bhopali from whom a country made pistol and three 12 bore cartridges were recovered. His statement was recorded and he was booked to penitentiary the same day by the I.O. On the basis of recovery of country made pistol and cartridges, Case Crime No. 435 under Section 25 Arms Act was registered against Bhopali. On 19.9.1980 I.O. arrested appellant Satya Pal and from his possession a knife was alleged to have been recovered. Appellant and other arrested accused alongwith him were put under veil and were lodged in Police lock-up the same day and entry vide rapat No. 27 was made in the G.D, by head- Moharrir Prahlad Singh, which G.D. Entry has been proved as Ext. Ka 11 by P.W. 8. On 21.9.1980 I.O. came to know that another dacoit Dharam Pal had already been booked to jail. On 31.10.1980, charge-sheet was laid against the appellants Satya Pal and Bhopali vide Ext. Ka-12 and subsequently on 11.12.1980, I.O., concluding the investigation, had charge-sheeted accused Dharam Pal, vide Ext. Ka-13. 5. Injured Khair-Un-Nisan was examined by the Dr. H.B. Bhatt (P.W. 4) on 29.7.1980 at 11.55 a.m. vide Ext. Ka-2, which is reproduced below : "Ext. On 31.10.1980, charge-sheet was laid against the appellants Satya Pal and Bhopali vide Ext. Ka-12 and subsequently on 11.12.1980, I.O., concluding the investigation, had charge-sheeted accused Dharam Pal, vide Ext. Ka-13. 5. Injured Khair-Un-Nisan was examined by the Dr. H.B. Bhatt (P.W. 4) on 29.7.1980 at 11.55 a.m. vide Ext. Ka-2, which is reproduced below : "Ext. Ka-2 Injuries of Khair-Un-Nisan (1) Abraded contusion with swelling 2 cm x 1 cm present on left side of head 8 cm above from left eye brow. Nature of Injury - Simple Duration - Ascot 12 hour Caused by - Blunt object” Other three injured witnesses Faiyyaz, Imdad Husain and Nabi Mohammad were medically examined by Dr. A.U. Khan, P.W. 5 on 29.7.1980 at 3.10, 3.30 and 3.45 a.m. vide Exts. Ka-3 to Ka-5 respectively, which are as follows : "Ext. Ka-3 Injuries of Faiyyaz (1) Multiple gun-shot wound of entry in an area of 9 cm x 7 cm x depth not proved on the lower part of the both buttocks just above the area of the anal canal each wound measuring 0.25 cm x 0.25 cm? Kept under observation. X-ray advised - No charring, blackening or tattooing near the injury. (2) Multiple gun-shot wound of entry in an area of 24 cm x 10 cm on the back of the right forearm each wound of entry measuring 0.25 cm x 0.25 cm. No charring or bleeding seen? Kept under observation and X-ray advised. Nature of Injuries:—Both injuries kept under observation and X-ray advised to decide its nature and caused by forearm. Duration:—Fresh in nature.” "Ext. Ka-4 Injuries of Imdad Husain (1) Gun-shot wound of entry of 0.25 cm x 0.25 cm on the lateral aspect of the left side chest in the outer lateral aspect 8 cm lateral with left nipple. No charring or bleeding? Kept under observation. X-ray advised. (2) Two gun-shot wound of entry each measuring 0.25 cm x 0.25 cm with outer lateral aspect of the left upper arm in the middle. No charring or bleeding seen? Kept under observation. X-ray advised. Nature of Injuries:—Both kept under observation and X-ray advised to decide its nature and caused by some fire-arm. Duration:—Fresh in nature.” "Ext. Ka-5 Injuries of Nabi Mohammad (1) Contusion 6 cm x 2 cm on the front of the middle of the left upper arm in the middle. No charring or bleeding seen? Kept under observation. X-ray advised. Nature of Injuries:—Both kept under observation and X-ray advised to decide its nature and caused by some fire-arm. Duration:—Fresh in nature.” "Ext. Ka-5 Injuries of Nabi Mohammad (1) Contusion 6 cm x 2 cm on the front of the middle of the left upper arm in the middle. (2) Contusion 3 cm x 1 cm on the back of the left foot. Nature of Injuries:—Both simple and caused by some hard and blunt object. Duration:—Fresh in nature.” 6. Charge-sheet against the accused resulted in their summoning and their cases were sent up for trial to the Court of Session’s in different lots, where, it were registered as S.T. No. 405 of 1980, State v. Satya Pal, S.T. No. 3 of 1981, State v. Rajjan and another and S.T. No. 6 of 1981, State v. Bhopali. In the present appeal, the only concern is with S.T. No. 405 of 1980 State of U.P. v. Satya Pal. 7. Learned trial Judge/ IInd Additional Session’s Judge, Rampur charged all the accused under Sections 395, 397 I.P.C. which charges were read out and explained to the accused who denied the same and claim to be tried and hence, to establish their guilt, trial procedure was undertaken. 8. To cement guilt of the accused, prosecution relied upon oral testimonies of nine witnesses out of whom, Irshad Hussain informant P.W 1, Imdad Hussain P.W. 2 and Ali Mohmmad P.W. 3 were the fact witnesses. Dr. H.B. Bhatt, P.W. 4, Dr. A.U. Khan. P.W. 5 were the two doctors who had examined the injured, constable Shiv Kumar Singh and Constable Shiv Kumar Sharma, P.W. 6 and P.W. 7, respectively had testified before the learned trial Judge that the accused persons were kept under veil (Bapurda), while they were in their custody and were not allowed to be seen by anybody and in that condition they were dispatched to District Jail. S.I. Begraj Singh, P.W. 8 is the Investigation Officer whereas Executive Magistrate Sri Murli Dhar Dubey P.W. 9 had conducted identification parade of the accused on 29.10.1980 and 10.12.1980 vide identification memos Ext. Ka 13 and Ka 14. According to the identification memo, appellant Satya Pal was identified correctly both by P.W.1 and P.W. 2. 9. S.I. Begraj Singh, P.W. 8 is the Investigation Officer whereas Executive Magistrate Sri Murli Dhar Dubey P.W. 9 had conducted identification parade of the accused on 29.10.1980 and 10.12.1980 vide identification memos Ext. Ka 13 and Ka 14. According to the identification memo, appellant Satya Pal was identified correctly both by P.W.1 and P.W. 2. 9. In his statement under Section 313 Cr.P.C. appellant had denied incriminating circumstances put to him, occurring in the prosecution evidences and had pleaded his false implication by stating that he was arrested from his house and has been falsely implicated and on the incident date he was on his duty in Raja Textiles. He had also pleaded the defence that he was never put under veil and witnesses had testified against him under police pressure. 10. Learned trial Judge, vide impugned judgment and order, concluded that prosecution was unsuccessful in bringing home the charge against the appellants Dharam Pal and Bhopali and therefore, acquitted them but it concluded that so far as appellant Satya Pal is concerned, his guilt is established beyond all reasonable doubt and therefore convicted him under Sections 395, 397 IPC and sentenced him to 7 years R.I., which conviction and sentence is under challenge in the instant appeal by the convicted accused appellant Satya Pal. 11. In the backdrop of the aforesaid facts, when this appeal was called out for final hearing after a gap of more than three decades, nobody appeared to argue it and therefore, Sri Patanjali Mishra, learned advocate was appointed as amicus curiae to assist the Court in final disposal of the appeal. Sri Sangam Lal Kesherwani, learned AGA was heard on behalf of respondent prosecutor State. 12. Castigating the impugned judgment of conviction and sentence, learned amicus curiae raised following submissions : That so far as appellant Satya Pal is concerned, he has not been assigned any specific role nor any weapon has been assigned to him. No description of the said appellant was disclosed to the I.O during the investigation by any of the fact witnesses. No recovery of any article was made from his possession. No description of the said appellant was disclosed to the I.O during the investigation by any of the fact witnesses. No recovery of any article was made from his possession. It was next argued that the appellant is alleged to have been arrested on the basis of an information received from an informer but how the informer got clue regarding involvement of the present appellant in the crime has nowhere been stated nor deposed before the learned trial Judge and therefore, the prosecution story of complicity of appellant being disclosed by an informer is a hokum and feigned allegation. It was next submitted that none of the fact witnesses, P.W. 1 to P.W. 3, are reliable and no credence can be attached to their testimonies, as the learned trial Judge himself has disbelieved their evidences regarding involvement of Bhopali and Dharam Pal in the crime. It is submitted that Rajjan was discharged at the stage of charge itself and consequently, out of four persons, who were sent up for trial, three were acquitted of the offences. Learned amicus curiae, therefore, contended that since none of the prosecution witnesses are wholly reliable, no credence can be attached to the story of involvement of the appellant in the crime who also deserves an acquittal and the same treatment as that of others. It was next contended that appellant is alleged to have been arrested on 19.9.1980 at 2.45 pm from Swar Bus-stand by the I.O., Begraj Singh, P.W. 8, but his identification was got conducted on 29.10.1980 after a gap of near about 40 days for which, no explanation has been offered by the prosecution and therefore test identification of the appellant is suspect and cannot be attached with any credibility. Learned counsel submitted that P.W. 1 and P.W. 2 had not committed any mistake in identifying the appellant is an indication of the fact that the appellant was shown to them prior to his test identification parade otherwise, without disclosing the physical and other appearance of the appellant, it is impossible to cogitate that P.W. 1 and P.W. 2 both would identify the appellant after a gap of more than three months of the incident without committing any mistake. Harping much upon the harangued argument, learned amicus curiae contended that had the appellant being one of the dacoit, at least P.W. 1 and P.W. 2, would have divulged his role to the Investigation Officer during investigation which they had eschewed and therefore, identification of the appellant is a dicey piece of evidence on which, conviction of the appellant should not have been recorded. It is further contended that P.W. 1 in his deposition had stated that he was caught hold on the cot by the two dacoits whereas rest of the dacoits indulged in committing dacoity but curiously enough the said version was never narrated to the I.O. by the informant P.W. 1 and therefore entire depositions of fact witnesses and their conduct is not above board to which, no authenticity can be attached. It was further contended that according to the prosecution case the dacoits had veiled their faces but strangely the said aspect was also not informed to the I.O. during investigation and therefore, it is writ large on the evidences on record that the prosecution witnesses had tried to mendacious a story at the behest of the police personnels and therefore, no credibility should be attached to their depositions. 13. Primarily on these submissions, learned amicus curiae submits that conviction of the appellant be scored out and he be acquitted of both the charges and be set at liberty and his appeal be allowed. Sri Sangam Lal Kesherwani, learned AGA refuting the submission by learned amicus curiae argued to the contrary and submitted that there are two good identification against the appellant without any mistake and therefore, conviction of the appellant is unassailable and must be sustained. It is contended that there was no motive for the prosecution witnesses to falsely implicate the appellant nor the appellant had brought on record any such material and therefore, the prosecution had brought home appellant’s guilt beyond all reasonable doubt and there is nothing for this Court to take a contrary view from that of the learned trial Judge and appellants appeal, being bereft of merits, be dismissed. 14. I have considered the arguments raised by both the sides and have vetted and analysed oral and documentary evidences on record. From the sequence of events and prosecution evidences, what is culled out is that so far as appellant Satya Pal is concerned, he is not named in the FIR. 14. I have considered the arguments raised by both the sides and have vetted and analysed oral and documentary evidences on record. From the sequence of events and prosecution evidences, what is culled out is that so far as appellant Satya Pal is concerned, he is not named in the FIR. No description of any dacoity is recorded either in the FIR nor was stated by the fact witnesses during the course of investigation to the I.O. Only a general and bald assertions regarding the weapons, which were wielded by the dacoits during commission of dacoity, is mentioned without specifying it to anybody. Informant and other witnesses had identified Bhopali during commission of the dacoity as his veiled face was untied during the incident but learned trial Judge disbelieved this version of the fact witnesses and acquitted Bhopali. Another important aspect is that Dharam Pal, another co-accused whose case stands at par with that the present appellant was also acquitted and in his respect all the fact witnesses were disbelieved. It is also writ large on the evidences on record that no weapon, specific role was assigned to the present appellant and no recovery of any looted article has been made from his possession. Without informing I.O regarding physical appearance, attire and weapon carried by the present appellant Satya Pal how he was identified during identification parade after a gap of near about three months is something, which is very dicey and does not appeal to reason. For convicting an accused, his guilt has to be established, clear of all doubts, which, in the present appeal, on the evidences led in the trial is missing. Another important reason is that the appellant was arrested on 19.9.1980. His identification was conducted on 29.10.1980. Why so much delay occasion for conducting the identification parade has not been brought on record by the prosecution at all. Unless and until, prosecution satisfactorily explained such a delay, identification of the appellant after such an enormous gap, does not inspire any confidence. Under Section 25 Arms Act, the appellant has not been convicted at all and, therefore, the deposition of the Investigating Officer that at the time of his arrest, appellant possessed a knife is also a false story. Unless and until, prosecution satisfactorily explained such a delay, identification of the appellant after such an enormous gap, does not inspire any confidence. Under Section 25 Arms Act, the appellant has not been convicted at all and, therefore, the deposition of the Investigating Officer that at the time of his arrest, appellant possessed a knife is also a false story. Appellant does not have any criminal proclivity nor the prosecution has been able to fathom its out and hence there is remote possibility that appellant will involved himself in a case of dacoity. None of the injured witnesses and the informant had assigned any specific role to the appellant and, therefore, his participation in the crime seems to be very doubtful. I.O. has not endeavoured to work out the crime truthfully and faithfully as according to the prosecution case, ten or twelve dacoits had committed dacoity but out of them, only four could be apprehended and regarding rest, prosecution story is conspicuously silent, which also erodes it’s credibility. Not to deliberate much over the facts, I am of the opinion that merely on the basis of a dicey identification conducted after an enormous delay without any explanation is insufficient to uphold the conviction of the appellant and, therefore, I allow the appeal and set aside conviction of the appellant Satya Pal and acquit him of all the charges. Appellant Satya Pal is on bail, he need not surrender, his bail bonds and surety bonds are hereby discharged. Let a copy of the judgment be certified to the trial Court for it’s intimation. ——————