JUDGMENT Hon'ble Arvind Kumar Tripathi (II), J. 1. Heard Shri S.B. Singh, learned counsel for the appellants and Shri Sharad Dixit, learned AGA for the State respondent. 2. Present criminal appeal has been filed by the appellant Virendra Singh and Madhur Pal challenging the conviction and sentence dated 16.2.2008 passed by the learned Additional District and Sessions Judge/Fast Track Court No.5, Lucknow in Sessions Trial No.548 of 2004, Crime No.376 of 1993, under Sections 394, 411 IPC, Police Station Cantt, District Lucknow by which they were convicted and sentenced to undergo RI of 10 years and were directed to pay fine of Rs.2000/- each. In default of payment of fine, they have been directed to undergo 2 months additional RI, under Section 411 IPC they have been directed to undergo 3 years RI. 3. As per factual matrix of the case, FIR was lodged by Anantu, son of Dori lal, in police Station Cantt, Lucknow on 22.9.1993, at about 9: 15 AM, orally alleging that he is a resident of Argunganj Achalkheda, Police Station Gosainganj, District Lucknow. He was working as a guard in a factory and lives with family in the premises of factory. Today, at about 5 AM, four miscreants entered into his house and started loot. When his wife Chandrawati objected, they assaulted him and his wife by danda. On alarm, Mohd. Siddiqui, Ram Khelawan, Hanuman, Kallu and other persons gathered there. Then all four miscreants fled toward road along with looted property from his house. They all chased them and with the help of two police constables Abhay Kumar Rai and Shiv Shanker Tiwari, who were on round on the road, apprehended those miscreants. One person told his name to be Virendra Singh Gaur, second person told his name Madhur Pal, third person told his name to be Kamlesh Singh and fourth person told to be his name Lalu. All the four accused apprehended accused persons along with witnesses and police personnels went to police station and oral FIR was lodged. On this, a case under Sections 394, 412 IPC and Section 3 (2) (v) of SC & ST Act was registered. The injured persons were sent for medical examination and after investigation charge sheet under Sections 394, 412 IPC and Section 3 (2) (v) of SC & ST Act was submitted against all the four accused persons. On this, a case under Sections 394, 412 IPC and Section 3 (2) (v) of SC & ST Act was registered. The injured persons were sent for medical examination and after investigation charge sheet under Sections 394, 412 IPC and Section 3 (2) (v) of SC & ST Act was submitted against all the four accused persons. During trial, case of Kamlesh Singh and Lalu was separated and trial proceeded against Virendra Singh and Madhur Pal. Charges under Section 394 , 411 IPC and Section 3 (2) (v) of SC & ST Act was framed. Accused persons pleaded not guilty and claimed to be tried. The prosecution examined PW-1 Anantu, PW-2 Smt. Chandrawati, PW-3 Mohd. Siddiqui, PW-4 S.I. Ram Autar, PW-5 Dr. Anil Kumar and PW-6 S.I. Bedharak Singh. After close of prosecution evidence the statement of accused persons Virendra Singh and Madhur Pal were recorded. They denied their involvement in the crime and claimed to be innocent. No defence witness was examined. 4. The court below has, after going through the evidence on record and after hearing learned counsel for the accused, convicted the accused persons Virendra Singh and Madhur Pal under Sections 394, 411 IPC and acquitted the of the charges under Section 3 (2) (v) of SC & ST Act. Feeling aggrieved, this criminal appeal has been filed. 5. It was submitted by the learned counsel for the appellants that there is nothing on record to show that as to who were the persons, who apprehended the accused persons and took them to the police station. The witnesses have not supported the prosecution case. The police witnesses Abhay Kumar Rai and Shiv Shanker Tiwari have not been examined in the court. The articles recovered have not been identified by the complainant as well as any witness of the case. Lastly, it was submitted that if the prosecution story is treated to be true then the appellants cannot be convicted under Section 394 , 411 IPC simultaneously, because immediately after loot they are alleged to have been arrested and thus, no case under Section 411 IPC is made out. 6. Learned AGA submitted his arguments in support of the judgment. 7. PW-3 Mohd. Siddiqui, according to the FIR version, is the person, who is alleged to have chased the miscreants. 6. Learned AGA submitted his arguments in support of the judgment. 7. PW-3 Mohd. Siddiqui, according to the FIR version, is the person, who is alleged to have chased the miscreants. This witness has stated that when he woke up by the noise of breaking of door, he along with family members went down, but all the accused persons by then managed to escape. He has further stated that none of his house hold article was stolen. He has further stated that he has not seen the miscreants. 8. PW-4 S.I. Ram Autar was, at the time of incident, posted as Head Moharrir in Police Station Cantt, and he has prepared chik FIR on oral information of Anantu. This witness has proved Ex.Ka.1 Chik FIR. 9. PW-5 Dr. Anil Kumar was, at the time of incident, posted as Medical Officer in Civil Hospital, Lucknow. He had examined Anantu and Smt. Chandrika Devi, at about 12: 50 and 12: 55 PM, and has prepared their injury report Ex.Ka.2 and Ex.Ka.3 respectively. 10. PW-6 S.I. Bedharak Singh is the Investigating Officer during investigation. He has prepared fard of recovery articles. He has proved fard Ex.Ka.1. This witness has further proved site plan Ex.K.4 and inspected the recovered article and prepared fard Ex.Ka.5 and submitted charge sheet Ex.Ka.6. 11. PW-1 Anantu has stated before the court that on the fateful day, at about 4: 45 or 5 AM. He heard the alarm and as soon as he came out of the house, after opening the gate, some miscreants started assaulting him by lathi and they snatched ornaments from his wife and mother in law. When the villagers chased the miscreants, they fled away and two police men and the villagers apprehended them. He further stated that he got himself treated in the market and saw that the apprehended persons were made to sit in a vehicle. The witnesses has identified one accused Virendra Singh in the court to be the person, who was present in the loot. 12. In his cross examination, he has stated that out of four persons, two accused persons are present, who are Virendra Singh and Madhur Pal. He has stated that recovered argicle was recovered from their possession. This witness has further stated that he has seen one accused very clearly. When asked to identified in the court, he pointed out Madhur Pal as Virendra Singh. 13. He has stated that recovered argicle was recovered from their possession. This witness has further stated that he has seen one accused very clearly. When asked to identified in the court, he pointed out Madhur Pal as Virendra Singh. 13. PW-2 Smt. Chandrawati Devi has also supported the prosecution version, but she has stated in her examination in chief that she did not and cannot identify the miscreants. 14. After going through the above evidence, it is clear that the only witness to identify the appellants is PW-1 Anantu. The statement of all other witnesses are of no help to the prosecution. Hence, the evidentiary value of identification of PW-1 is to be discussed. 15. It is notewotthy that the occurrence is of 22.9.1993 in which name of the accused persons have been mentioned, as was told by the accused persons. In view of this, the only thing is to be seen as to whether evidence relating to identification, by Anantu is reliable or not. It is also noteworthy that the statement of Anantu was being recorded after 13 to 14 years of the incident. 16. Admittedly, both the accused persons were not known to the witness PW-1 prior to the incident. No witness, who was involved in the arrest of accused persons, have been examined. Two police constables, who were on round, for maintaining law and order duty, have not been examined. Mohd. Siddiqui has not supported the prosecution version regarding arrest. 17. It is pertinent to mention that no test identification parade was held during investigation. The purpose of test identification parade is to test the observation, grasp of memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. It a witness identifies the accused in court for the first time, probative value of such uncorroborated evidence becomes minimal so much so that it becomes as a rule of prudence and not law, unsafe to rely on such a piece of evidence. It a witness identifies the accused in court for the first time, probative value of such uncorroborated evidence becomes minimal so much so that it becomes as a rule of prudence and not law, unsafe to rely on such a piece of evidence. I am fortified in my view by the decisions of the Apex Court in the cases of Kanta Prasad v. Delhi Administration, AIR 1958 SC 350 ; Vaikuntam Chandrappa v. State of Andhra Pradesh, AIR 1960 SC 1340 ; Budhsen and another v. State of U.P., 1970 (2) SCC 128 ; Kanan and others v. State of Kerala, (1979) 3 SCC 319 , Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700 , Bollavaram Pedda Narsi Reddi and others v. State of Andhra Pradesh, (1991) 3 SCC 434 , State of Maharashtra v. Sukhdev Singh and another, (1992) 3 SCC 700 , Jaspal Singh alias Pali v. State of Punjab, (1997) 1 SCC 510 , Raju alias Rajendra v. State of Maharashtra, (1998) 1 SCC 169 , Ronny alias Ronald James Alwaris and others v. State of Maharashtra, (1998) 3 SCC 625 ; George and others v. State of Kerala and another, (1998) 4 SCC 605 , Rajesh Govind Jagesha v. State of Maharashtra, (1999) 8 SCC 428 ; State of H.P. v. Lekh Raj and another, (2000) 1 SCC 247 ; and Ramanbhai Naranbhai Patel and others V. State of Gujarat, (2000) 1 SCC 358 . 18. Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out by the Apex Court where identification of an accused, for the first time in court, without there being any corroboration whatsoever, can form the sole basis for his conviction. 18. Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out by the Apex Court where identification of an accused, for the first time in court, without there being any corroboration whatsoever, can form the sole basis for his conviction. They are (1) if a witness had any particular reason to remember about the identity of an accused, in that event, the cae can be brought under the exception and upon solitary evidence of identification of an accused in court for the first time, conviction can be based; (2) where the witness had a chance to interact with the accused or that in a case where the witness had an opportunity to notice the distinctive features of the accused, which lends assurance to his testimony in court, the evidence of test identification in court for the first time by such a witness cannot be thrown away merely because no test identification parade was held; and (3) absence of test identification parade may not be fatal if the accused is sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement or is arrested on the spot immediately after the occurrence, and in either eventuality, the evidence of witness identifying the accused for the first time in court can form the basis for conviction without the same being corroborated by any other evidence. 19. So far as identification is concerned, during trial PW-1 has identified Madhur Pal as Virendra Singh. This clearly indicates that grasp of memory, capacity to recapitulate what a witness has seen earlier was in doubt. 20. The above fact clearly indicates that this identification cannot be based for conviction of the appellants. 21. So far as the recovery is concerned, the recovery has not been proved, as no witness of recovery was examined. 22. In view of the above, this appeal is liable to be allowed, and is hereby allowed. The accused persons are acquitted of the charges framed against them. They are on bail. They need not surrender before the trial court. Their sureties are discharged. Fine, if any deposited, shall be returned to the appellants.