JUDGMENT Hon’ble Amar Singh Chauhan, J.—The present appeal has been preferred against the judgement and order dated 31.7.1982, passed by II Additional Sessions Judge, Basti in Sessions Trial No. 204 of 1976, Sessions Trial No. 304 of 1976 and Sessions Trial No. 19 of 1980 (State v. Sant Ram Pandey and others), arising out of Case Crime No. 18/1976under Sections 395/397 and 25 of Arms Act, Police Station Parasrampur, District Basti whereby the accused-appellants Sant Ram Pandey, Ram Lautan and Jhinkoo Lal have been convicted and sentenced to undergo 5 years R.I. Each under Section 395 IPC. 2. So far as the case of appellant No. 1 Sant Ram Pandey is concerned there is report of the Chief Judicial Magistrate, Basti mentioning that the appellant Sant Ram Pandey has died. Therefore, the case against the appellant Sant Ram Pandey stands abated. 3. The facts giving rise to the present appeal are that an application was moved by the complainant Badri Prasad son of Ram Sunder, resident of village Reharwa, hamlet of Basthanwa, Police Station Parasrampur, District Basti which was addressed to the Station House Officer, Parasrampur, District Basti on 29.3.1975. He states that on 19.2.1976/1.3.1976 he was sleeping in his tubewell kothri which situates at a short distance from his main door. The elder brother Ram Dayal was sleeping in the Osara and the women were sleeping inside the house and an earthen Dhibri was burning inside the house. At about 1.30 a.m. 10-12 dacoits came to his house and started to break the door. His brother Ram Dayal and the women were beaten by the dacoits, who were armed with country made pistol, lathi, danda and axe and looted the house hold property. The complainant also got awakened by the noise of the breaking open and the alarm raised by the members of his family. When he raised alarm Gauri Shankar Singh, Murli Singh, Ram Dutt, Bhaggal, Ram Samujh, Bipat, Puddan and other persons came to his house alongwith their torches and lathis. Seeing the increasing number of the villagers the accused fled away with the looted properties towards north. Ram Dayal and others sustained injuries. On 1.3.1976, the complainant Badri Prasad prepared a written report and lodged the same at Police Station Parasrampur where it was entered at Check FIR No. 15 vide Exts. Ka-16. 4. Seeing the increasing number of the villagers the accused fled away with the looted properties towards north. Ram Dayal and others sustained injuries. On 1.3.1976, the complainant Badri Prasad prepared a written report and lodged the same at Police Station Parasrampur where it was entered at Check FIR No. 15 vide Exts. Ka-16. 4. On the basis of the aforesaid report, a case was registered against the accused-appellants as Case Crime No. 15 of 1976 under Sections 395/397 which was entered in GD vide report No. 7 on 1.3.1976 at about 8.10 a.m. at Police Station Parasrampur, District Basti. After the registration of the case, the injured persons were sent to district hospital Basti for medical examination. 5. The investigation of the case was entrusted to the Station House Officer Sri D.P. Singh, Police Station Parasrampur, basti. He inspected the place of occurrence and recorded the statement of witnesses. On 2.3.1976, the I.O. went to village Nedula where he ascertained that the broken boxes are lying by the side of Manorama river which belong to the complainant. He gave the same in the supurdagi of Badri Prasad vide Ext. Ka 29. On 4.3.1976, the I.O. received information by an informant that a person is coming from village Majhgawa side. On the pointing out of the informant the said person was waylaid and one country made pistol and the two live cartridges were recovered from the right fold of his trousers. The accused Sant Ram Pandey was taken to the Police Station Parasrampur where a case under Section 25 of the Arms Act, 1959 was registered as case crime No. 18 at check FIR No. 18 on 4.3.1976 (Ext. Ka 30) and G.D. No. 10 (Ext. Ka 31). He confessed his guilt and was involved in dacoity. The I.O. went to village Anbha and arrested the accused Ram Lautan. He also made a disclosure statement and stated that he can give out some articles looted in the dacoity committed at the house of Badri Prasad. These articles were sealed in a bundle vide Fard Ext. Ka 25. Thereafter the police personnel reached the house of accused Jhinkoo Lal where he was arrested and he also accepted his involvement in the dacoity. In his house a petromax was recovered. The accused-appellants and the articles recovered from them were taken to the Police Station Mankapur. 6. These articles were sealed in a bundle vide Fard Ext. Ka 25. Thereafter the police personnel reached the house of accused Jhinkoo Lal where he was arrested and he also accepted his involvement in the dacoity. In his house a petromax was recovered. The accused-appellants and the articles recovered from them were taken to the Police Station Mankapur. 6. The test identification parade of accused Ram Lautan and Jhinkoo Lal was held on 28.4.1976 at District Jail Basti. It was got conducted by the Sub-divisional Magistrate, Harraiya vide test identification memo Ext. Ka 23. Accused Ram Lautan was identified by witnesses Badri, Indramati, Ram Dutt and Bhaggal Ram. Accused Jhinkoo Lal was identified by witnesses Badri Prasad, Indramati and Gauri Shankar. 7. The I.O. after getting sufficient material, filed charge-sheet against the accused-appellants Ram Lautan and Jhinkoo Lal under Sections 395/397 IPC vide charge-sheet Ext. Ka 42. 8. The identification of the properties was held on 22.7.1977 which was conducted by Sri Madhukar Divedi vide identification memo Ext. Ka 14. Articles were identified by witnesses Badri Prasad, Smt. Surpata, Smt. Indramati and Gauri Shankar. On 17.9.1977, Sri Bharath Mishra submitted charge-sheet Ex. Ka 15 against accused Sant Ram, Ram Lautan, Somai and Sahebdin under Section 412 IPC. 9. To bring home the guilt of the accused, the prosecution has examined P.W-1 Badri Prasad, P.W-2 Smt. Indramati, P.W-3 Smt. Surpata, P.W-4 Ram Dutta, P.W-5 Ram Dayal, P.W-6 Gauri Shankar Singh, P.W-7 Bharath Mishra and P.W-8 Vijay Bahadur Singh. 10. All of the aforesaid witnesses have on oath stated that an armed dacoity was committed at the house of Badri Prasad in the intervening night of 29.2.1975/1.3.1976 at 1.30 a.m. It is also proved by the injury reports Exts. Ka 17 to Ka 20, Ram Dayal has on oath stated that he sustained injuries noted in Ext. Ka 17 in the course of the commission of the said dacoity. Similar is the statement of Murli Singh whose house was also ransacked and looted by the dacoits. Smt. Marraji is the mother of the complainant. She also sustained injuries during the course of the commission of the dacoity. Thus, it is well established that an armed dacoity was committed at the house of Badri Prasad in the intervening night of 29.2.1976/1.3.1976. 11. Smt. Marraji is the mother of the complainant. She also sustained injuries during the course of the commission of the dacoity. Thus, it is well established that an armed dacoity was committed at the house of Badri Prasad in the intervening night of 29.2.1976/1.3.1976. 11. Since the appellant Sant Ram has dies during the pendency of the appeal the only question which falls for determination is whether the accused-appellant No. 2 Ram Lautan and appellant No. 3 Jhinkoo Lal participated in the commission of the said dacoity. The accused Ram Lautan has examined under Section 313 Cr.P.C. in which he has stated that witnesses were knowing him from before and, therefore, they identified him at the test identification parade at District Jail, Basti. The accused further alleged that he is married at the house of one Bhageloo of village Nedula. The complainant Badri had no good terms with his in-laws. He, therefore, falsely implicated him. Accused-appellant Jhinkoo Lal has also denied the charges. He has stated to have been arrested from his house. The accused further alleged to have been shown to the witnesses before the test identification parade. He further alleged that he used to serve one Sri Ram Pradhan. He left his work and, therefore, Shri Ram got him falsely implicated. He has tendered no oral or documentary evidence in his defence. 12. The learned IInd Additional Sessions Judge, Basti after perusing the record and hearing the counsel for the parties came to the conclusion that prosecution had established his charge under Section 395 IPC against the appellants and, therefore, convicted and sentenced them, as has already mentioned herein above vide judgement and order, hence this appeal questioning the said judgement. 13. Feeling aggrieved, the accused-appellants Ram Lautan and Jhinkoo Lal have come up in this appeal. 14. Heard Sri Rajesh Singh, Amicus Curiae for the appellants and learned Additional Government Advocate for the State. 15. It is submitted by Amicus Curiae for the appellants that the accused-appellants are not named in the First Information Report. Their names came in the light of confessional statement of the co-accused Sant Ram before the Police. The appellants were well known from before the occurrence. There is no recovery relating to the dacoity as alleged. Identification parade was held after two months of their arrest. There is sole evidence of identification parade which is not corroborated by the independent evidence. 16. The appellants were well known from before the occurrence. There is no recovery relating to the dacoity as alleged. Identification parade was held after two months of their arrest. There is sole evidence of identification parade which is not corroborated by the independent evidence. 16. The case in hand, it has come in the evidence that PW2 Smt. Indramati has stated to have seen and identified the accused Ram Lautan in the light of burning Dhibri and torch. In her cross-examination, the witness stated that she had identified Ram Lautan as he was the most black man in the parade. On the basis of this statement, I find the basis to discredit her statement on the ground that she identified the accused Ram Lautan as he was the most black man in the parade. It was not denied by the prosecution that Ram Lautan is married at the house of one Bhageloo of village Nedula. The complainant Badri had no good terms with his in-laws. Nothing has come in the statements of prosecution witnesses Badri Prasad, Smt. Indramati and Ram Dutt that Ram Lautan was armed with any deadly weapon. The accused Ram Lautan has also been charged under Section 412 of Indian Penal Code. According to the prosecution, on the pointing out of the accused, on 4.3.1976, one black woolen blanket, one pink silkan Sari, one child bush shirt, one brass Gagra and Thali of Phool were recovered from his house, on 22.7.1977 after considerable delay which was not explained. The property was said to be recovered in the presence of witnesses Sita Ram and Jai Mangal. None of the aforesaid witnesses have been examined. Even the Investigating Officer D.P. Singh to whom disclosure statement is alleged to have been made by the accused, has not been examined by the prosecution. The prosecution witness P.W.-8 Vijay Bahadur Singh has stated that no recovery was made in his presence and his signature was obtained by the police on a plain paper. In this case, looted property in dacoity was said to be recovered more than one year after the dacoity. The presumption of participation in dacoity was not allowed to be raised as observed in the case of Babul Musahar v. State of Bihar, 1990 Crl J (NOC) 65 Patna. This presumption can also be applied to graver offences e.g. murder and dacoity. The presumption of participation in dacoity was not allowed to be raised as observed in the case of Babul Musahar v. State of Bihar, 1990 Crl J (NOC) 65 Patna. This presumption can also be applied to graver offences e.g. murder and dacoity. Its scope in the Illustration (a) to Section 114 of Evidence Act which reads as follows: 114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration: (a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. 17. Prosecution claimed the complicity of both of these accused persons only on the basis of the result of the Test Identification Parade which was conducted on 28.4.1976. The T.I. Parade was held near about two months of arrest but delay was not explained. It was held by Hon’ble Apex Court in the case of Puttan alias Kamal Prasad v. State of U.P., AIR 1992 SC 1032 , 1992 Cri LJ 1122, that in absence of any plausible explanation for the inordinate delay had no evidence forthwith. 18. Test identification report in jail is not a substantive piece of evidence but it can only be used as corroborative evidence and could not be of much evidentiary value as held by the Apex Court in case of Raj Kishore Singh v. State of Bihar, AIR 1971 SC 1058 . 19. Hon’ble Supreme Court in case of Budhsen and another v. State of U.P., AIR 1970 SCC 1321, observed that the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly. considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. 20. Moreover, after incident on 4.3.1976, the Investigating Officer received the information by an informant that a person possessed of country made pistol and two live cartridges is coming from Majhgawa side. After collecting the independent witness, the said person was waylaid. At about 7.00 a.m. a person who subsequently disclosed his name as Sant Ram Pandey came over there by cycle Avon make frame No. 123846. One country made pistol and two cartridges were recovered from the right fold of his trousers. The cycle of which handle was of another ATLAS cycle held by him was recovered which is said to have been looted in the dacoity committed at the house of the complainant but nothing has come in the evidence that said make Avon cycle was looted in the dacoity. On the confessional statement of this co-accused, the case was opened. All these circumstances through cloud on the genuineness of the investigation. So far as case against the Jhinkoo Lal is concerned nothing has come in the statement of the prosecution witness that he was armed with any deadly weapon. The recovery of petromax on his pointing out was said to be made in the presence of the witnesses Thanedar Singh and Sita Ram but none of the witnesses had been examined by the prosecution. S.I. D.P. Singh to whom disclosure statement was made by the accused, was not examined. It is also not denied by the informant Badri Prasad that the accused-appellant was not used to serve one Sri Ram, Pradhan of his village and on being left his work, Sri Ram got him falsely implicated. This fact shows that the accused was well known from before the occurrence. 21. Learned Additional Sessions Judge also found that there is no evidence on record to bring the charge under Section 412 IPC against the accused-appellant. This fact shows that the accused was well known from before the occurrence. 21. Learned Additional Sessions Judge also found that there is no evidence on record to bring the charge under Section 412 IPC against the accused-appellant. 22. In the case in hand there is solitary identification report prepared in jail to connect the appellants with the crime. It has come in the evidence that the accused were known to the witnesses. Neither any injury was said to be caused by the appellants nor any looted property was recovered from the possession of the accused-appellants. Test Identification Parade by itself cannot form the basis of conviction. Therefore, it is not justified to maintain conviction. 23. For the reason mentioned here-in-above, the criminal appeal is allowed. The conviction and sentence of the appellants namely Ram Lautan and Jhinkoo Lal under Section 395 IPC are hereby set aside and appellants are acquitted of alleged charge levelled against them. Since the appellants are on bail, their bail bonds, if any, are cancelled and sureties stand discharged. 24. The appellants are directed to comply with the provisions of Section 437-A Cr.P.C. 25. Let a copy of the order be sent to lower Court for compliance. ——————