JUDGMENT Hon’ble Kalimullah Khan, J.—This criminal appeal has been filed under Section 374 (2) Cr.P.C. against the judgment and order dated 5.2.1982 passed by the IVth Additional Sessions Judge, Mathura in S.T. No. 570 of 1978 (Crime No. 161 of 1977) under Section 395 and 412 I.P.C. P.S. Baldeo, District Mathura ‘ State v. Dhakku and others’ arising out of committal order dated 19.12.1978 passed by the then IIIrd Additional Munsif Magistrate, Mathura whereby the learned Additional Sessions Judge has convicted and sentenced each of the appellants (1) Dhakku S/o Ram Dayal, R/o Village Lokera, P.S. Sadabad at present Sailkhera, P.S. Baldeo, District Mathura (2) Balaram S/o Hari Singh, R/o Village Hathkali, P.S. Baldeo, District Mathura (3) Layak Singh S/o Gulab Singh, R/o Village Lokera, P.S. Sadabad, District Mathura (4) Balvir Singh S/o Mishri Lal R/o Village N. Mauji, P.S. Sahpau, District Mathura under Section 395 I.P.C. with R.I. for 7 years on the ground that findings of guilt recorded by the learned trial Court against them is against the weight of evidence on record and illegal. They are based on conjectures and surmises. 2. All the aforesaid four accused appellants were charged under Sections 395 and 412 I.P.C. on 22.7.1981. They pleaded not guilty and claimed their trial. However, none of the accused has been convicted and sentenced under Section 412 I.P.C. against which no criminal appeal has been preferred. During the pendency of the appeal accused Balvir Singh (appellant No. 4) has died, therefore, his appeal has stood abated vide order dated 6.8.2009. 3. The case of the prosecution is that there is one village Patalauni within the police circle of P.S. Baldeo, District Mathura which is about 4 miles far from the police station, and therein lives one Mormukat S/o Munni Lal, Brahmin, who is teacher by profession and is on the rolls of Rashtriya Higher Secondary School, Patalauni. On 4.10.1977 Sri Dharmvir Singh, Inspector, Crime Branch, C.I.D., Agra was posted as S.O., Sadabad. He received information through special informer at 6.20 p.m. that the gang of Dhakko dacoit would swoop village Bisawar within the police Circle of P.S. Sadabad or village Patalauni within the Police Circle P.S. Baldeo the same night some time after 9.00 p.m. substance of this information was noted down vide G.D. report No. 21-copy Exhibit Ka-29, and believing this information to be true, he informed his counterpart at Baldeo by wireless. He himself left for village Bisawar with necessary force to guard village Bisawar. S.O. Baldeo was Sri Shanti Prakash Tiwari P.W. -5 who was out of station in connection with Court evidence at Agra and during his absence Sri Pooran Lal, S.I. II, P.S. Baldeo had left for village Patalauni with necessary force. Sri Tiwari, S.O., Baldeo could return back at 11-25 p.m. and then he learnt that the force had left for village Patalauni on a tip off given by S.O. Sadabad. This force of P.S. Baldeo had reached village Patalauni at 7.30 p.m. and it took into confidence the villagers, sounded a waring about apprehended swoop, and alerted them to be vigilant. At about 10.30 p.m. a gang of about 9 bandits variously armed was spotted by the reporter Mormukat, coming from the side of the house of Rajjilal. His wife Smt. Shanti Devi P.W.-4 left the house immediately with her two children and took shelter in the house of one Bangali, whose wife gave her shelter, and concealed them in some part of the house. Mormukat apprehended danger, fled away from his house, and his house was invaded by the miscreants, and they fired several shots. Sanehi Lal collected foons, and set the heap of foons ablazed. Dacoits were armed with torches, and a lantern was litting inside the Verendeh of his house. Villagers namely Neksa, Bangali, Mangla and Sanehi Lal appeared on the scene armed with lathis and torches etc. The fires of badmashes, hit Sanehi Lal and Neksa who were rendered injured. Meanwhile the police also resorted to firing, and badmashes after ransacking the house for about 5 to 10 minutes, immediately left it, because of mounting pressure. They took away one box and fled away towards village Selkhaira. Mormukat prepared written report Exhibit Ka-3 and took it to police station Baldeo where it was made over at 2.00 a.m. on 5.10.1977 and on its basis a case was registered under Section 395, 397 I.P.C. against unknown persons. Sri Tiwari, S.O. Was present in the police station and he immediately recorded the statements of Sidhhgopal constable, clerk and Mormukat, the reporter, and left for the spot with necessary force alongwith the reporter. The reporter made over a supplementary report of the looted property Exhibit Ka-4. Sri Tiwari, S.O. Was present in the police station and he immediately recorded the statements of Sidhhgopal constable, clerk and Mormukat, the reporter, and left for the spot with necessary force alongwith the reporter. The reporter made over a supplementary report of the looted property Exhibit Ka-4. Site was inspected and site plan Exhibit Ka-10 was prepared by the I.O. The house was found ransacked and lantern was seized vide memo Exhibit Ka-5. A heap of ash was also found by Sri Tiwari out of which he took a sample Exhibit Ka-15 and prepared memo Exhibit Ka-11. The I.O. also recovered 6 empties from the darwaza, and they were seized vide memo Exhibit Ka-12 and they were duly sealed up. The statement of Smt. Shanti Devi was recorded, and the torches of the witnesses were inspected, and they were made over to their respective owners vide Supardginama Exhibit Ka-13. The police force which had resorted to firing made over the empties which were seized vide memos Exhibit Ka-14 to Ka-19. Statement of S.I. Pooran Lal was recorded and thereafter the S.O. Left with the police force for village Bisawar where he accosted S.O. Dharmvir Singh of P.S. Sadabad with his force on Jeep. The two police officers discussed the matter, and they left in search of the dacoits who had dacoited the house of Mormukat and at about 5.00 p.m. they reached Canal Culvert of village Tiket. The entire force was divided into two parties, and they took up positions on eithr side of the Patari. At about 6.30 p.m. two persons were noticed each carrying a Jhola in his hand, and they were intercepted and asked to stop, whereupon they tried to flee away and were chased and apprehended. They disclosed their names as Layak Singh and Balvir Singh. Their personal searches revealed as following: (1) Layak Singh: 1 Dhoti janani Exhibit-10, 1 Dhoti Mardani Exhibit-11, 1 Blouse green Exhibit-12, 1 blouse red Exhibit-13 and 1 kurta terrycot Exhibit-14. Memo Exhibit Ka-20 was prepared to evidence this recovery by the I.O. Sri Tiwari and the recovered materials were sealed in the Jhola of Layak Singh. (2) Balbir Singh: 1 woolen coat red in colour Exhibit-6, 1 white kurta Exhibit-7, 1 Janani dhoti Exhibit-8, Bush-shirt Terrycot Exhibit-9. Memo Exhibit Ka-20 was prepared to evidence this recovery by the I.O. Sri Tiwari and the recovered materials were sealed in the Jhola of Layak Singh. (2) Balbir Singh: 1 woolen coat red in colour Exhibit-6, 1 white kurta Exhibit-7, 1 Janani dhoti Exhibit-8, Bush-shirt Terrycot Exhibit-9. Memo Exhibit Ka-21 was prepared by the I.O. Sri Tiwari to evidence this transaction and the recovered materials were duly sealed up in a Potli. Thereafter, he recorded the statements of Layak Singh and Balbir Singh, and the accused were made Baparda on the spot, and then the police force left for police station alongwith these accused, where the two captives were put behind bars, the gate of Hawalat was fully covered up with a blanket, the Sentry on duty was given necessary directions to keep the two accused Baparda, and they too were informed that they will be subjected to test identification proceedings, and they should keep themselves masked. The two sealed bundles were deposited in the Malkhana of P.S. Sadabad. Entries were made in the G.D. vide report No. 24 of 21-15 hours dated 5.10.1977 whose copy is Exhibit Ka-22. On 6.10.1977 I.O. Tiwari and S.O. Dharmvir Singh with necessary police force invaded the house of Balram in the city of Mathura in Mohalla Jagnnathpuri but he was not available. They immediately, left for Sadabad, and from there rushed up to village Lokera and one Sahab Singh, a public witness was picked up from the township as also Komal Singh and they were apprised the purpose behind their picking up. It was found on inquiry that Dhakkoo was not available at his house, and police force left village Lokera, and on its way back, and on the chouraha of Mirpur and Moniya, at about 5.00 a.m. they noticed two persons who asked to stop, but they tried to run away, but their attempt was foiled and they were apprehended. On an inquiry they revealed their names as Balram and Dhakko. Their personal searches were taken and they revealed as follows: (1) Balram: 1 woolen coat Ex. 3, 1 Pant Terrycot Ex. 4 and 1 Janani Dhoti Terrycot Ex. 5. (2) Dhakko: 1 Green Coat Ex. 1. and 1 Pant Ex. 2. On an inquiry they revealed their names as Balram and Dhakko. Their personal searches were taken and they revealed as follows: (1) Balram: 1 woolen coat Ex. 3, 1 Pant Terrycot Ex. 4 and 1 Janani Dhoti Terrycot Ex. 5. (2) Dhakko: 1 Green Coat Ex. 1. and 1 Pant Ex. 2. Memos Exhibit Ka-23 and Exhibit Ka-24 were prepared relating to Balram and Dhakko and the recovered materials were sealed up in their respective bags, copies of the memos were made over to the accused concerned and they were made Baparda then and there, and their statements were recorded. Dhakko was taken back to his house and on his pointing out the police recovered booty of several dacoites. These recovered materials were duly sealed up and were taken to police station Sadabad, where they were deposited in the Malkhana and entries were made in the G.D. vide report No. 14 dated 6.10.1977 at 10-30 a.m. copy is Ex. Ka.-25. On 28.4.1978 Shri L.N. Saxena, the then Special Ex. Magistrate, Mathura conducted test identification proceeding of the recovered properties which were brought from Sadar Malkhana by H.C., Om Prakash, the then Court Moharrir of Shri L.N. Saxena, Thekedar Kalicharan brought the articles to be mixed up in sealed bundles with seals intact, as also a sample of seal. The sealed bundles were brought by the aforesaid contractor, and they were opened in the presence of Sri Saxena in his Courtroom, and the suspected articles were mixed up with the articles brought by the contractor and the ratio was 1:4. The articles mixed up duly resembled the suspected articles. Necessary precautions were taken to cover up the prominent marks and the witnesses participated in the T.I.P. were Mormukat, his wife Smt. Shanti Devi. Mormukat identified the items 1 to 13 correctly but failed to pick out item No. 14. Smt. Shanti Devi correctly picked out articles at item No. 2, 3, 5, 6, 8, 9, 10, 12, 13 and 14. Sri Saxena prepared memo in his own hand and signatured Ex. Ka. 26 in the presence of A.P.O. Sri Surendra Singh. Thereafter, the suspected articles were sealed up with the Court seal and taken back to Sadar Malkhana and deposited there by Court Moharrir. The accused were put up in T.I.P. Sri L.N. Saxena was the Spl. Ex. Magistrate, who conducted these T.I.Ps. Ka. 26 in the presence of A.P.O. Sri Surendra Singh. Thereafter, the suspected articles were sealed up with the Court seal and taken back to Sadar Malkhana and deposited there by Court Moharrir. The accused were put up in T.I.P. Sri L.N. Saxena was the Spl. Ex. Magistrate, who conducted these T.I.Ps. On 9.11.1977 in District Jail, Mathura where in the suspects were Dakko, Balram, Layak Singh, Balvir Singh and one Resham alias Roshan. The net result was that only Mormukat was able to pick out correctly Dhakko, Blaram, Layak Singh and Balvir Singh. He could not pick out the 5th suspect Resham alias Roshan, and committed mistake. Witnesses Munshi, Mangla, Kinori could not pick out anyone and committed no mistake. Memo of identification is Ex. Ka.32. On completion of investigation charge-sheet was submited in Court which is Ex. Ka.35 dated 28.5.1978. To substantiate its case prosecution relied on oral as also documentary evidence. The documents are Ex. Ka.1 to Ex. Ka. 36 and material Exhibits are 1 to 22. Witnesses examined are Dr. J.C. Agrawal, P.W. 1, Mormukat P.W.2, C.C. Sidhgopal Pandey P.W.3, Smt. Shanti Devi P.W.4, Shanti Prakash Tiwari P.W.5, H.C. Om Prakash P.W. 6, Kalicharan Thekedar P.W.7, C. Natthi Lal P.W. 8, Dharmvir Singh, Inspector Crime Branch C.I.D., Agra P.W.9, C. Moti Singh P.W.11, M.H. Nabab Singh P.W. 12, Komal Singh P.W. 13, Public witnesses who had witnessed the arrest of Dhakko and Balram; Sri Surendra Singh A.P.O., P.W. 14, Gajraj P.W. 15, Gyanendra Prkash S.I., P.W. 16 and H.C. Ramgiri, P.W. 17. Accused were examined under Section 313 Cr.P.C. wherein they stated as follows: (i) Dhakko (50) Formerly r/o village Lokera, P.S. Sadabad and presently r/o Selkhaira, P.S. Baldeo, District Mathura: Stated nothing about the factum of dacoity and pleaded ignorance about it. He denied his arrest at the place and in the manner as alleged by the prosecution and added that he was whisked away from his house in village Lokera and was taken to police station where incriminating materials allegedly recovered from him were planted. He remained unmasked. Witness Mormukat knew him full well from before and all residents of village Patlauni know him. Selkhaira and Patlauni are neighbouring villages and the witnesses who participated in T.I.P. Knew him from before. One Girraj of village Kharba is inimically disposed towards him and he was the instrumental in his arrest. He remained unmasked. Witness Mormukat knew him full well from before and all residents of village Patlauni know him. Selkhaira and Patlauni are neighbouring villages and the witnesses who participated in T.I.P. Knew him from before. One Girraj of village Kharba is inimically disposed towards him and he was the instrumental in his arrest. He is a police puppet and also a police broker. (ii) Layak Singh (45) S/o Gulab Singh, r/o village Lokera, P.S. Sadabad, District Mathura: Pleaded ignorance about the actual facts as alleged by the prosecution and stated that he was arrested from village Lokera at about midday and nothing was recovered from him. The incriminating articles were planted and he was shown to the witnesses in police station Baldeo and Sadabad. There is parti-bandi in his village, and for this reason he has been falsely implicated in this case. (iii) Balvir Singh (45) S/o Mishrilal R/o village N. Mouji, P.S. Sahpau, District Mathura: Pleaded ignorance about the facts as alleged by the prosecution and added that at about midday he was at his sister’s house in village Kharba from where he was whisked away by the police. He denied the recovery of incriminating materials and stated that he was kept unmasked throughout and shown to the witnesses in P.S. Baldeo and P.S. Sadabad. Ram Singh of village Lokera in his enemy and he was the instrumental in his arrest from the house of his sister and he has been falsely implicated in this case. (iv) Balram (30) S/o Hari Singh, R/o village Hathkoli, P.S. Baldeo: Stated that he knows nothing about the factum of dacoity as alleged by the prosecution. He was arrested from the city of Mathura, as he used to put up in Mohalla Govind Nagar. For one night he was detained in police station Baldeo and he was shown to the witnesses at P.S. Baldeo as aslo at P.S. Sadabad. For this reason he was indentified by Mormukat, and no incriminating material was recovered from him. Pradhan Girraj of his village is inimically disposed towards him and he was the instrumental in his arrest, and he was falsely implicated in this case. For this reason he was indentified by Mormukat, and no incriminating material was recovered from him. Pradhan Girraj of his village is inimically disposed towards him and he was the instrumental in his arrest, and he was falsely implicated in this case. In Mohalla Govind Nagar in the city of Mathura he was putting up in Kothi No. 56 of the Srivastava Sahab a railway employee from where he was whisked away while he was sleeping at about 11, 11:30 p.m. One witness was examined in defence by accused Layak Singh and Balvir Singh and he is Sahab Singh D.W. 1. This witness testified that on 5.10.1977 while he was at his tube-well in village Lokera at about midday police came there and picked him up, as also the other villagers including Layak Singh and Balvir Singh. 4. After making appraisal of the evidence learned trial Court recorded its finding of conviction of all the four accused and sentenced them as aforesaid holding that the factum of dacoity is proved; the light available on the spot was sufficient for first informant Mormukat to recognize and identify the faces of the dacoits. Proof of fire arm injury sustained by Sanehi Lal and injury sustained by prosecution witness Neksa; recovery of empty cartridges and sample of ashes apart from the recovery of Lantern and Torches and good identification of appellants by first informant Mormukat and the identification of their looted articles recovered from the possession of the appellants by him and his wife Smt. Shanti Devi are sufficient to hold that; Prosecution has proved its case against all the four accused beyond doubt. Since, prompt recovery of the booty within 24 hours of the incident was made from the possession of all four accused persons, therefore, in the opinion of the trial Court, it was sufficient to hold them guilty for the offence punishable under Section 395 I.P.C. and there was no need to punish them under Section 412 I.P.C. in view of the fact that, according to him, it was a surplusage and redundant. Since, the accused were found guilty of the offence of dacoity itself, therefore, possession of loot property will not constitute a distinct and separate offence, hence, learned trial Court did not award any sentence on the charge under Section 412 I.P.C. 5. Since, the accused were found guilty of the offence of dacoity itself, therefore, possession of loot property will not constitute a distinct and separate offence, hence, learned trial Court did not award any sentence on the charge under Section 412 I.P.C. 5. Feeling aggrieved by the impugned judgment and order dated 5.2.1982, this criminal appeal has been preferred by accused appellants. 6. Heard learned Amicus Curiae, Sri Mohd. Wasim for the appellants and learned A.G.A. Miss. Usha Kiran. Perused the record. 7. The date, time, place and the factum of dacoity itself have not been challenged by the appellants. Learned trial Court has elaborately discussed the evidence establishing the factum of dacoity in the house of first informant Mormukat and his finding recorded on that point needs no interference. 8. As regards the availability of light at spot there is no two opinion that there was sufficient light of Lantern, Torches and light created by litting foons. Hence, finding of availability of light recorded by learned trial Court does not deserve any interference. 9. As regards the finding recorded by the learned trial Court that F.I.R. of this case was lodged by Mormukat very promptly and there was no undue delay on his part is not borne out by the evidence on record. No doubt that Head Constable drawing the chick report and making G.D. entry about the registration of the case has deposed that the incident took place at 10.30 p.m. on 4.10.1977 and F.I.R. was lodged at 2.00 a.m. on 5.10.1977 after covering the distance of 4 miles from the spot to the police station but the learned trial Court has oversighted the evidence of Smt. Shanti Devi P.W.-4 wife of first informant Mormukat P.W.-2 who has clearly and categorically deposed that throughout the night of the incident her husband did not go to the police station. He was roaming here and there in the village throughout the night and after the sunrise i.e. on 5.10.1977 he went to lodge the F.I.R. at the police station Baldeo. The position being so the F.I.R. appears to be anti-timed. He was roaming here and there in the village throughout the night and after the sunrise i.e. on 5.10.1977 he went to lodge the F.I.R. at the police station Baldeo. The position being so the F.I.R. appears to be anti-timed. Although the appellants were not named in the said F.I.R. but the looted articles find place in it, therefore, once it is proved that F.I.R. is anti-timed, no reliance whatsoever can be placed especially in the facts and circumstances of the case which would be discussed later on in the body of this judgment at appropriate stage. Suffice it to say here is that none of the articles shown to have been looted as mentioned in the report Exhibit Ka-3 was recovered from the possession of either of the accused. Rather, after lodging the F.I.R. when the I.O. went at spot, he was handed over another list of articles which is Exhibit Ka-4. In the said list nothing has been mentioned that what for this list Exhibit Ka-4 was given to I.O. Ofcourse, Mormukat P.W.-2 has deposed in his evidence before the Court that after thorough checking of the looted articles, he came to know that the articles mentioned in Exhibit Ka-4 had also been taken away by the dacoits, therefore, he gave this list to the I.O. The alleged list Ex. Ka-4 has been given by informant to I.O. in his own handwriting and signature during the course of investigation. Therefore, it is hit by Section 162 of Cr.P.C. and it cannot be read in evidence and if this list Exhibit Ka-4 renders inadmissible, the entire finding of conviction of appellants recorded by the learned trial Court on the basis of alleged recovery of looted articles deserves to be set aside. 10. From the discussions made above, it is hereby held that the F.I.R. is anti-timed and finding recorded otherwise by the learned trial Court is not tenable under the law. 11. The learned trial Court has based its finding of conviction of all the four appellants on following two grounds viz. (i) identification of all the four accused appellants by first informant Mormukat alone and (ii) the identification of looted articles as mentioned in Exhibit Ka-4 which were allegedly recovered from the possession of the appellants. 11. The learned trial Court has based its finding of conviction of all the four appellants on following two grounds viz. (i) identification of all the four accused appellants by first informant Mormukat alone and (ii) the identification of looted articles as mentioned in Exhibit Ka-4 which were allegedly recovered from the possession of the appellants. Mormukat and his wife Smt. Shanti Devi both have correctly identified 90% of the articles of loot during test identification parade conducted after more than 6 months of the incident of the recovery. 12. In all, five accused persons including four appellants were put up for test identification by five prosecution witnesses including Mormukat. None of the prosecution witnesses except Mormukat identified the appellants. Mormukat identified all the four appellants correctly but did not identify 5th accused Rasam @ Rosan. In this way out of five accused, he has correctly picked up four appellants without committing any mistake. On this ground learned A.G.A. has argued that first informant Mormukat P.W.-2 is a wholly reliable witness and on the basis of his identification evidence conviction of appellants was rightly recorded by learned trial Court. On the other hand, learned Amicus Currie has submitted that identification evidence is not substantive evidence and in this case the evidence of identification of Mormukat given in the Court cannot be believed in view of the fact that he had no opportunity of seeing, recognizing or identifying either of the dacoits at the spot because in his own evidence in the Court he has clearly and categorically admitted that at the moment dacoits came and entered in his house, out of fear he left the house alongwith his wife and children. He was so perplexed that he left his Ballam and Transistor at the spot. He had lost his senses. He concealed himself somewhere after about 10-12 steps from his house and returned only when the dacoits had left the village. This fact is mentioned in the F.I.R. itself that the moment he noticed the arrival of the dacoits at his house, he immediately left his house. In the F.I.R. he said that dacoits were 8-9 in number where as in his deposition he deposed that dacoits were 10-12 in number. This fact is mentioned in the F.I.R. itself that the moment he noticed the arrival of the dacoits at his house, he immediately left his house. In the F.I.R. he said that dacoits were 8-9 in number where as in his deposition he deposed that dacoits were 10-12 in number. He deposed ^^Lkk<+s lkr cts “kke lwpuk feyhA mlds rhu ?kaVs ckn cnek'kku lh/ks gekjs ?kj ij vk;sA ftl xyh ls gksdj cnek'kku vk;s Fks vaèksjk FkkA dksbZ LVªhV ykbV ugha FkhA tc cnek”kku esjh rjQ dks vk;s rc fn[kkbZ ns jgs Fks mu ij VkpZ FkhA MdSr yksx flfoy Mªsl igus Fks dksbZ dqrkZ&/kksrh] dksbZ ik;tkek igus Fkk cnek”kku nl ckjg ds dne ds Qklys ij fn[kkbZ fn;s esjh iRuh cjkens esa esjh cxy Fkh rFkk [kkV ij cSBh Fkh Mj ds ekjs esjs gok [kjkc gks x;h rFkk cYye o VªkathLVj NksM+dj Hkkx [kM+k gqvkA yM+ds dks xksnh esa Mkydj rFkk NksVk cPpk tks choh ds ikl Fkk Hkkxdj iSB esa igqap x;k ftlds nksuksa rjQ edkukr gSa ogk¡ gYyk epk;k og iSB esjs ?kj ls 10&12 dne ds Qklys ij gSA vkl ikl ds ?kjksa ls gYyk lqudj Hkkx [kM+s gq;s esjh choh viuk cPpk eq>ls ys yh rFkk Hkkx [kM+h gq;h eSa ogk¡ VwVk [kM+k jgk tc MdSr pys x;s ?kj okil igq¡pk rc ns[kk fd MdSr esjs ?kj dk D;k gky dj x;s esjk ;g dguk gS fd MdSr esjs ?kj esa MdSrh Mky jgs gSa lkjs vkcknh ds yksx Hkkx [kM+s gq;s MdSrh ds ekjs eSa ?kcM+k x;k] gkFk&ikao Qwy x;s etcwju edku dh nhokj ds lgkjs [kM+k gks x;kA Under the aforesaid scenario of facts no ordinary prudent man would like to believe that Mormukat P.W.-2 was in a position or he had any opportunity to recognise and identify the dacoits. It is normal human conduct that when the dacoits enter the village and somebody makes alarm to this effect, the unarmed villagers immediately take precaution to save themselves, wife and children from atrocities of the dacoits. Their mental status and equilibrium does not permit them to focus on the faces of dacoits. Exactly the same thing appears to have happened in this case. Their mental status and equilibrium does not permit them to focus on the faces of dacoits. Exactly the same thing appears to have happened in this case. The moment Mormukat raised alarm after concealing himself from the sight of the dacoits that they are ransacking his house, the inhabitants of the village left their houses, therefore, it is not believable at all that Mormukat could see the faces of the dacoits. A glims are two of the dacoits during his running away from the spot alongwith his wife and children in order to save themselves was not sufficient at all for him to recognise the feature of the dacoits and most probably this is the reason that no feature of the dacoits whatsoever has been mentioned in the F.I.R. Even no special feature or any mark of identification viz. Dacoits being toll or short structure, fat or thin, fair skin or otherwise has been mentioned. Even during the course of investigation no such feature of either of the dacoits was given by Mormukat to the I.O. to get some clue of the dacoits. Even in his deposition made in the Court he has not pointed out any special feature or mark of identification of either of the appellants having been noticed by him during the course of dacoity. Even the spot position of either of the appellants has not been pointed out by Mormukat. It has come in his evidence that some of the dacoits were standing outside the house, some of them were ransacking the house by entering inside the house while some of them were there on the roof of his neighbour but Mormukat first informant P.W.-2 could not point out as to whether these appellants were standing outside the house or they were looting booty by entering inside the house or they were there on the roof of the neighbour as a watch dog, therefore, mere saying by Mormukat that he saw and recognized the faces of the dacoits during the commission of dacoity is not sufficient to rely on his uncorroborated testimony. 13. 13. In Bhagwan Das v. State of U.P., 2010 (70) ACC 416 (All), the conviction of the accused was set aside on the ground that hulia or special feature of the appellants was not given in the F.I.R. or in the statement of witnesses and no explanation was furnished by the prosecution for non-production of the Magistrate who had conducted the test identification parade. Likewise, in Jabar Singh v. State of U.P., 2010 (70) ACC 462 (All), it was held that in absence of any special feature and distinguishing marks or colour of miscreants mentioned in the F.I.R. no sanctity can be attached to the test identification. 14. Even his wife P.W. 2 has also deposed that the moment, she noticed that dacoits had come, she immediately rushed up to save herself, her children and her husband. She clearly and categorically stated that her husband had also left the house immediately alongwith her and they returned to their house only after the dacoits had left the village. She deposed that ^^esjs vkneh tSls gh dgk cnek'kku vk x;s eSa cPpksa dks ysdj Hkkx x;h eSa vius cPpksa dks ysdj eksgYys ds caxkyh ds ?kj ysdj pyh x;h ................. eSa caxkyh ds ?kj ls djhc ,d ?kaVk ckn ykSV dj vk;hA tc eSa caxkyh ds ?kj ls ykSV dj vk;h rc esjs ifr eq>ls igys ?kj igaqp x;s Fks og fpYyk jgs Fks gekjk ?kj yqV x;kA** 15. In view of the aforesaid evidence the claim of Mormukat that he had seen, recognised and identified the dacoits at spot is wholly unreliable and the finding of the learned trial Court contrary to it, being perverse deserves to be set aside. Therefore, the first ground i.e. identification of the appellants by Mormukat, relied on by learned trial Court stands smashed. 16. Likewise, second ground of conviction recorded by learned trial Court receives the same fate in view of the fact that undisputedly, the second list Exhibit Ka-4 was handed over by Mormukat P.W. 2, a teacher to I.O. in his own handwriting and signature during the course of investigation and therefore, it is hit by the provisions of Section 162 Cr.P.C. and it cannot be read in evidence. 17. 17. According to prosecution Exhibit Ka-20 is the recovery memo of the articles one Dhoti Janani, one Dhoti Mardani (white in colour) which are said to have been recovered on 5.10.1977 at 6.30 p.m. from the possession of accused Layak Singh. The aforesaid recovery memo Exhibit Ka-20 does not bear the signature of accused Layak Singh. Before completing the recovery memo it has been mentioned in its body that the copy thereof has been furnished to accused Layak Singh. This is palpably false because the question of furnishing the copy of recovery memo to accused arises only after the completion of recovery memo. The recitals of furnishing the copy has been made amids the body of recovery memo and not after its completion and the signatures of the recovery witnesses. 18. The aforesaid five articles allegedly recovered from the possession of Layak Singh accused do not find place in written report Exhibit Ka-3 wherein the looted articles were mentioned while a blouse green and a blouse Gulabi find place in Exhibit Ka-4 which is not admissible in evidence. No public witness of recovery is there. 19. Jeweleries were also looted but none of the jeweleries has been recovered from either of the accused. 20. Similarly, recovery memo Exhibit Ka-21 pertains to the recovery of articles viz. a coat blazer, a kurta white, a kurta terikat and a dhoti janani chhintdar allegedly recovered from the possession of appellant Balvir (since dead). None of the articles finds place in the list disclosed in the F.I.R. Ex. Ka. 3. Although, a kurta terikat finds place in Exhibit Ka-4 while dhoti janani chhintdar neither finds place in Exhibit Ka-3 nor in Exhibit Ka-4. It is strange that only one kurta was alleged to have been looted but now the recovery of three kurtas have been made which creates strong suspicion in the prosecution story. This Exhibit Ka-21 does not contain the signature of appellant Balvir. 21. Likewise, the recovery memo Exhibit Ka-23 dated 6.10.1977 pertains to alleged recovery made from co-accused Balram by the same police party. According to prosecution on 6.10.1977 at about 5.00 a.m. from the possession of accused Balram a woolen coat kai in colour, patloon terikat and dhoti janani terikat were recovered. But none of these articles finds place in Exhibit Ka-3. This recovery memo Exihibit Ka-23 too does not contain the signature of accused Balram. 22. According to prosecution on 6.10.1977 at about 5.00 a.m. from the possession of accused Balram a woolen coat kai in colour, patloon terikat and dhoti janani terikat were recovered. But none of these articles finds place in Exhibit Ka-3. This recovery memo Exihibit Ka-23 too does not contain the signature of accused Balram. 22. Same police party claims to have arrested accused Dhakku on 6.10.1977 at 5.00 a.m. alongwith accused Balram and from his possession a teriwoolen coat green in colour having strips and patloon terikat are said to have been recovered. There is no mention as to whether it was lady coat or gents while patloon terikat finds place in Exhibit Ka-4 and this inadmissible recovery memo does not bear the signature of accused appellant Dhakku. 23. Since, the F.I.R. Exhibit Ka-3 has been found anti-timed and subsequent list Exhibit Ka-4 has been held to be inadmissible, therefore, no legal sanctity can be attached to the identification evidence of articles regarding which the alleged looted goods were put up for identification after about 7 months of the incident of loot. The incident of loot took place on 4.10.1977 whereas the articles were subjected to identification test on 28.4.1978. 24. For the aforesaid reasons both the grounds on the basis of which learned trial Court has recorded conviction of appellants and sentenced them under Section 395 I.P.C. deserves to be set aside. 25. Criminal Appeal is allowed. The impugned judgment and order dated 5.2.1982 is hereby set aside against the appellants Dhakku, Balram and Layak Singh. They are acquitted under Section 395 I.P.C. They are on bail. They need not surrender. Their bonds are cancelled and sureties stand discharged. Material exhibits be disposed of in accordance with relevant rules. Let Amicus Curiae Mr. Mohd. Wasim be paid Rs. Ten Thousand as his legal remuneration. Before parting with this Criminal Appeal, the Court appreciates and records the sincere and honest factual and legal assistance rendered by Miss. Usha Kiran, learned A.G.A.