JUDGMENT : Arvind K.Tripathi, J. 1. The instant Criminal Appeal has been preferred challenging the conviction and sentence awarded by the impugned judgment and order dated 2.2.1984 passed by Special Judge, Budaun in S.T. No.701 of 1981 (State vs. Satya Ram and two others) arising out of Case Crime No.169/1980, PS.Zarif Nagar, District Budaun convicting and sentencing the appellants Satya Ram and Talewar Singh under section 396 I.P.C. to undergo imprisonment for life. One of the appellant Talewar Singh is in jail and connected Criminal Appeal No.2313/84 filed on behalf of Satyaram has already been abated vide order dated 18.7.2016, since he died during pendency of the appeal. 2. Shri Apul Mishra, learned Advocate appeared on behalf of the appellant Talewar Singh and Shri Chandrajit Yadav, learned A.G.A. appeared on behalf of the State of U.P. 3. Heard learned counsel for the parties and perused the record. 4. The brief facts of the case is that the First Information Report was lodged by PW-1 Matru Lal, father of the deceased Durejpal. According to the version of the First Information Report, the informant was present at his house and his son Durej Pal was present at the shop. At about 4.00 P.M. On 1.11.1980 25-26 dacoits came in police uniform who were armed with rifle, pistol and axe and they caught hold his son who tried to run away. One of the dacoits shot fire causing injuries at his chest who fell down. The dacoits started committing dacoity in the shop. Thereafter they reached at the house of the informant, assaulted him with 'Danda' and asked about the household articles. He gave the keys of the house to them. The dacoits started looting his jewelleries, clothes, utensils, cash etc. including his DBBL gun with 100 cartridges. Thereafter they went to the house of Dr.Shiv Charan Lal and looted the household articles and his DBBL gun with 60 cartridges. Thereafter, they went to the house of Ram Bharosey Lal and Babu Ram, Chiranjive Lal, Hethram, Chandra Pal and looted household articles in their houses also. Pandit Murari Lal, Lala Murari Lal and Khauraj Singh of the same village fired with their gun. The dacoits were also firing with their firearms, hence due to fear villagers could not reach near them. The incident was witnessed by Raghunandan Prasad, son of Chabi Lal, Sonpal s/o Mishri Lal and other villagers. Pandit Murari Lal, Lala Murari Lal and Khauraj Singh of the same village fired with their gun. The dacoits were also firing with their firearms, hence due to fear villagers could not reach near them. The incident was witnessed by Raghunandan Prasad, son of Chabi Lal, Sonpal s/o Mishri Lal and other villagers. The dacoits were identified by them so after seeing them they could identify those dacoits who were speaking local languages of near by places. Some of the dacoits were of young and middle age. Their involvement in the looting incident in the village was for about 2-1/2 hours. Subsequently the informant alongwith neighbours reached at the shop and found that his son was lying in injured condition. With the help of villagers he was taken for medical aid to the Government Hospital, Islam Nagar. However, in the way to the hospital, he succumbed to injuries. Thereafter the dead body was brought and kept on the cot in the verandah of the school. The request was made to register the case and take necessary action. The chick report was prepared by Head Moharir Devraj Singh and also G.D. entry was made. 5. After the case was registered the investigation was handed over to PW-8 S.I. Hari Ram Sharma, PS.Zarifnagar. In the night of 1/2.11.1980 he went to the village Danpur and visited the place of the incident. He recorded the statement of Smt.Rameshwari, Shiv Charan Lal and other witnesses and inspected the place of incident, prepared the site plan. The statement of Raghunandan Prasad and Matru Lal were also recorded on the same day. The informant Matru Lal was examined by the doctor on 1.11.1980 at 10.00 P.M. who was brought by constable Rajendra Pal PS.Islam Nagar. The First Information Report was lodged initially at Islam Nagar. Subsequently the investigation was transferred to PS.Zarif Nagar. The post-mortem examination report on the body of Durej Pal was conducted on 2.11.1980 at 2.00 P.M. by Dr.A.K.Malkhani, the then Medical Officer, District Hospital Budaun. Following injuries were found on the person of the deceased: 1. Gun shot wound of entry 4 cm x 3.5 cm x cavity deep right side of chest 8 cm away right nipple at 4' O'clock position edges lacerated and inverted blacking and tattooing present around the wound. 2. Abrasion 7 cm x 1.5 cm left chest upper part. 6. Following injuries were found on the person of the deceased: 1. Gun shot wound of entry 4 cm x 3.5 cm x cavity deep right side of chest 8 cm away right nipple at 4' O'clock position edges lacerated and inverted blacking and tattooing present around the wound. 2. Abrasion 7 cm x 1.5 cm left chest upper part. 6. According to the opinion of the doctor, the death was due to shock and hemorrhage as a result of anti mortem injury no.1. 37 small pellets were recovered with one tickli from inside body. Right kidney found ruptured and lacerated. Peritoneum was found lacerated. 7 & 8 ribs fractured. Injury report and postmortem examination report were admitted, hence the prosecution was not required to prove the genuineness of the injury report, Postmortem examination report, First Information Report, and G.D. entry as they were admitted by learned counsel for the accused. After charge sheet was submitted, the charges were framed on 15.1.1983 against the appellant. The accused appellant denied the charges and pleaded to be tried. 7. The prosecution to prove its case examined 12 witnesses namely PW-1 Matru Lal, PW-2 Rajeshwari Devi, wife of the deceased Durej Pal and daughter-in-law of the informant Matru Lal, Shiv Charan Lal PW-3, PW-4 Raghunandan Prasad as eyewitnesses, PW-5 to 12 are formal witnesses. PW-5 Talewar Singh was posted as Head Constable who took Satyaram from the Police Station to District Bulandshahr whose face was covered. Umesh Chandra PW-6 who was Head Moharir sent Satyaram to District Court in custody of constable Hoshiyar Singh PW-7 who was the then SHO, Gunnaur and the investigation was handed over to him by order of the Superintendent of Police, hence he started investigation w.e.f. 18.1.1981. He tried to apprehend the accused. The accused appellant Satyaram was arrested on 3.4.1981. PW-7 Inspector Hoshiyar Singh submitted the charge sheet, PW-8 Hari Ram Sharma who was Sub Inspector on the relevant date at the Police Station Zarif, when the case was registered on 1.11.1980 at the Police Station Islam Nagar. He tried to apprehend the accused. The accused appellant Satyaram was arrested on 3.4.1981. PW-7 Inspector Hoshiyar Singh submitted the charge sheet, PW-8 Hari Ram Sharma who was Sub Inspector on the relevant date at the Police Station Zarif, when the case was registered on 1.11.1980 at the Police Station Islam Nagar. Thereafter the case was handed over to him who inspected the place of the incident, recorded the statement of the witnesses and prepared the site plan etc., PW-9 Mihi Lal who was sub inspector posted at Police Station Islam Nagar who prepared papers, sealed the dead body of Durej Pal and sent it for postmortem examination through constable, PW-10 Hargovind Singh who arrested the co-accused Sheodan alias Saudan, PW-11 Mr.Yad Ram Sharma who was posted at that time at the Police Station Divai arrested the accused the appellant Satyaram with illegal firearm and cartridges, PW-12 Rajvir Singh, the then Executive Magistrate before whom the identification parade was conducted, in which out of six witnesses, three identified the accused appellant Talewar Singh and three identified to the accused appellant Satyaram (since dead). 8. When the prosecution closed the evidence, the statement of the accused were recorded under section 313 Cr.P.C. According to the accused appellant Talewar Singh, he was falsely implicated due to party bandi and pressure of the police as there was enmity with the police. He further stated that he was resident of Shamspur Bhoor and one of the relatives was the resident of Danapur where incident of dacoity took place. Bazar at Danapur belonged to his relative and he used to realise tahbazari on behalf of his relative. His uncle Bhagwan Singh was Sarpanch of Nyay Panchayat, Danapur for about 25 years. Danapur was at a distance of one mile from his village. Blacksmiths and carpenters of village Danapur used to do their work. In a case against his father one Narain, who was uncle of the witness Shiv Charan Lal was witness against his father Fateh Singh. 9. The defence examined DW-1 Umrao Singh, DW-2 Shyama and DW-3 Jai Singh. According to DW-1 Supervisor Kanoongo, the distance is in between Danapur and Saraspur is about one and 1/4 mile. He had visited those village and there is direct way from Saraspur to Danapur. 9. The defence examined DW-1 Umrao Singh, DW-2 Shyama and DW-3 Jai Singh. According to DW-1 Supervisor Kanoongo, the distance is in between Danapur and Saraspur is about one and 1/4 mile. He had visited those village and there is direct way from Saraspur to Danapur. DW-2 the sister of the accused appellant Satyaram stated that her mother died when Satyaram was aged about five years, hence she brought up. For about five-six years he was not visiting her house. DW-3 Jai Singh was village Pradhan of village Saraspur and Girdharpur as both the villages were adjacent in the same gram panchayat. The Bazar used to take place on every Tuesday. Bazar belonged to her brother Har Prasad. Rajjoraj of village Danapur is also one of the co-sharer. Talewar Singh use to realise tehbazari on behalf of Rajjoraj and Har Prasad. Talewar Singh was also the relative of Rajjoraj. Son of PW 3 Jai Singh was married to nephew of Talewar Singh, the accused appellant. Nanand of the sister of Talewar Singh was married to Tezpal, son of Rajjoraj, hence Talewar Singh was known to the resident of village Danapur. Bhagwan Singh, tau of Talewar Singh was Sarpanch of Danapur. There was direct path way in between Danapur and Saraspur which was about 1/4 mile long and according to him, Talewar Singh was known to the witnesses since before the incident. There was fair price shop in the house of Shiv Charan Lal. The essential goods were being distributed to the residents of village Saraspur from that shop and Talewar Singh also used to purchase sugar from there. Doctor was sitting in village Danapur where Shiv Charan Lal was working. Matru Lal, the informant had the shop of general merchant. Talewar Singh used to purchase goods and medicines from the shop of Matru Lal. 10. After considering the statement of the witnesses trial court held the accused appellant Talewar Singh and Satyaram guilty of dacoity with murder, hence they were convicted and sentence for life imprisonment. However, co-accused Sheodan was acquitted from the charges giving benenfit of doubt. Now the present appeal has to be decided on behalf of only surviving appellant Talewar Singh on whose behalf appeal was pressed and argued by counsel for the appellant. 11. However, co-accused Sheodan was acquitted from the charges giving benenfit of doubt. Now the present appeal has to be decided on behalf of only surviving appellant Talewar Singh on whose behalf appeal was pressed and argued by counsel for the appellant. 11. Learned counsel for the appellant challenged the impugned judgment and order of conviction and sentence on the ground that in view of the evidence the accused appellants were known to the witnesses, including the informant, since before the incident and due to village party bandi and pressure of police, the appellant Talewar Singh was falsely implicated alongwith other accused. The incident of dacoity took place but the appellant was not involved in the incident. Had there been any intention to commit dacoity, the accused appellant Talewar Singh and the other co-accused must have covered their faces. Theres is no recovery of any looted articles including gun nor recovery of any weapon for committing dacoity. Merely on the test identification parade and identification by three of the witnesses, the appellant was convicted and sentenced. The test identification parade took place after one and half years and after 25 days of arrest of the appellant Talewar Singh and after three months of arrest of the accused appellants Satyaram, hence there was delay in test identification parade. Though the appellant was well known to the witnesses but apart from that there was ample opportunity to show them to the witnesses. According to test identification three witnesses identified the accused appellant Satyaram and three identified to the appellant Talewar Singh which is too good to be believed. The appellant was falsely implicated due to village party bandi and pressure of the police. According to prosecution case about 23-25 dacoits committed dacoity in 3-4 houses including in the house of the informant Matrul Lal. If the appellants are not known to the informant and other witnesses, there was no opportunity to identify them especially after more than one and half year. According to PW-4, only 4-6 dacoits have covered their faces, even according to prosecution case initially there was no intention to kill Durej Pal, son of Matru Lal. The dacoits were in the police uniform. According to PW-1, Durej Pal caught hold one of the dacoits, scuffle took place. Thereafter the accused appellant Satyaram (since dead) shot fire causing firearm injury on chest of Durej Pal who succumbed to the injuries. The dacoits were in the police uniform. According to PW-1, Durej Pal caught hold one of the dacoits, scuffle took place. Thereafter the accused appellant Satyaram (since dead) shot fire causing firearm injury on chest of Durej Pal who succumbed to the injuries. Subsequently though the informant was caught hold, he handed over the keys but the assailants did not shot fire at him. 12. Learned counsel for the appellant also relied the judgment of Apex Court reported in 2015 (6) SCC 623 Iqbal and others vs. State of Uttar Pradesh. He submitted that in view of the judgment the appellant is not liable to be held guilty and to be convicted merely on the basis of identification in test identification parade unless the same is corroborated by other substantive evidence. Hence the conviction and sentence of the appellant is against the weight of evidence on record and the impugned judgment of conviction and sentence is liable to be set aside and the appellant is entitled to be acquitted and released from jail. 13. Learned A.G.A. opposed the aforesaid prayer and submitted that it is a day light incident. There was ample opportunity before the witnesses to identify the dacoits. The test identification parade of Satyaram took place after three months as he was arrested on 7.3.1981 and test identification parade took place on 22.6.1981 but Satyaram is dead. 14. However, so for as the appellant Talewar Singh is concerned he has surrendered on 25.5.1981 and his test identification parade took place alongwith Satyaram on 22.6.1981, hence that was within a month. There was no delay. Test identification parade was also proved by Executive Magistrate PW-12 Rajvir Singh before whom test identification parade took place and three witnesses rightly identified the appellant Talewar Singh namely witnesses Shiv Charan, Matru Lal and Suresh Chandra, Even if, there was no recovery from the appellant Talewar Singh, since he was identified by the witnesses, hence his complicity in the dacoity which took place on 1.11.1981 at the house of the informant and at the house of other villages is proved, beyond reasonable doubt. According to witnesses the appellant was not known since before the incident. According to witnesses the appellant was not known since before the incident. First time they saw him at the time of the incident and second time in the court, subsequently in the test identification parde and thereafter in court, hence the appellant is not entitled to any benefit of doubt as in view of the fact in which dacoity took place in 4-5 houses on the same day which continued for more than two hours in which one person was shot dead and the informant also received injuries. 15. Considered the submissions of the learned counsel for the parties. 16. The genuineness of the First Information Report, Injury report, Postmortem examination report were not disputed as the same were admitted. Hence it is admitted case that the dacoity was committed on 1.11.1980 in between 4.00 P.M. to 6.30 P.M. The only controversy, has to be decided regarding complicity of the only surviving the appellant Talewar Singh. This is also admitted case that except identification of Talewar in test identification parade there is no other evidence adduced by the prosecution. No other substantive evidence adduced by the prosecution to establish the involvement of the appellant in the incident of dacoity. Admittedly neither there is recovery of any looted article including gun nor any weapon used by the appellant and co-accused. 17. According to the prosecution case there were 22-25 dacoits. According to prosecution case it is a day light incident. The appellant is resident of nearby village and the village of the appellant and village Danapur where the incident took place are in the same Gram Panchayat of which uncle (tau) of the appellant was Sarpanch for about 25 years but according to the prosecution case the appellant and other co-accused had not covered their faces, except statement of PW 4. According to PW-4 Raghunandan Prasad 4-6 accused had covered their faces. 18. So for as the appellant Satyaram is concerned, there was specific allegation that he shot fire on the deceased Durejpal when he caught hold one of the dacoits and scuffle took place in between them so there might be one of convincing reason and opportunity to identify Satyaram but no specific role assigned to the appellant Talewar Singh, due to which they identified him out of 24-25 dacoits. The specific case of the defence is that they were well known to the witnesses since before the incident so it is unbelievable that he would have participated in the incident alongwith the co-accused without covering his face. According to the accused appellant Talewar Singh the distance of his village Saraspur and Danapur was about one mile but according to DW-1 Umrao Singh, the then Supervisor Kanoongo the distance in between two village was about 1-1/4 miles as direct path way connecting two villages Saraspur and Danapur. According to DW3 Jai Singh both the villages Saraspur and Girdharpur were adjoining villages. The bazar was organised at Danapur on every Tuesday which belonged to his brother Har Prasad and Rajjoraj of village Danapur who was co-sharer. The appellant Talewar Singh was collecting tehbazari from the bazar on behalf of Rajjoraj and Har Prasad. Talewar Singh was relative of Rajjoraj and Talewar Singh was also his son-in-law. His son was married to the sister of the appellant Talewar Singh. The direct distance in between the village Danapur and Saraspur was about 1-1/4 mile. Bhagwan Singh, tau of Talewar Singh was Sarpanch of Danapur Panchayat and village Girdharpur. Saraspur was also part of the Nyay Panchayat. One doctor has clinic at village Danapur and witness Shiv Charan was doing the business of supply of medicines. The informant PW-1-Matru Lal had general merchant shop and the appellant Talewar Singh used to purchase goods and medicines from their shop. There was fair price shop in the house of Shiv Charan in which sugar was being distributed by DW-3. The appellant Talewar Singh also used to purchase sugar from there, hence in view of the fact he was known to the witnesses since before the incident in question. 19. Evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witness in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject matter of dacoity and the alleged weapons used in the commission of the offence. Benefit of doubt was given to one of the accused Sheodan who was also identified in the test identification parade. 20. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject matter of dacoity and the alleged weapons used in the commission of the offence. Benefit of doubt was given to one of the accused Sheodan who was also identified in the test identification parade. 20. In view of the above noted facts and discussion according to the prosecution case itself there is no evidence against the appellant Talewar Singh except that he was identified by the witnesses in the test identification parade held after three weeks though within a month. It is day light dacoity in which about 2325 dacoits were involved, out of which 4-6 had covered their faces though it is not the version of the First Information Report. However, there is no averment that the appellant Talewar Singh had covered his face and during committing dacoity his face was uncovered and witnesses got opportunity to identify. There was no specific averment except general allegation against him who was one of the members of gang of dacoits in which 23-25 dacoits were involved. It is also unnatural and unbelievable that he was resident of nearby place as the distance in two villages was about 1-1/4 miles but had not covered his face. Accused appellant, pleaded that witnesses know them as they were living in nearby places and also visiting the village of the witnesses. In the present case the inspection was conducted by the trial judge on the application of D.G.C. merely in respect of the distance in two villages i.e village of the appellant and village where the dacoity took place and according to him the distance was about 5 km but in 1980 distance was from road as he went by four wheeler jeep from village Danapur to village Saraspur and direct pathway was only about 1-1/4 miles. 21. Hence in view of the aforesaid fact in the present case since there is no substantive piece of the evidence adduced by the prosecution to establish the involvement of the accused appellant Talewar Singh in the dacoity because neither there is recovery of any looted article including gun nor weapon used by the appellant in committing dacoity nor any other substantive evidence except the identification of the appellant in test identification parade. Though in the present case one person lost his life but in view of the facts prosecution story regarding involvement of the appellant appears to be doubtful and the appellant is entitled for the benefit of doubt. It will not be safe to hold the appellant guilty in the present case. 22. In view of the above-noted discussion the impugned judgment of conviction and sentence in S,T.No.701of 1981 under section 396 I.P.C. PS.Zarif Nagar, District Budaun against the appellant is hereby set aside. Accordingly the appeal is allowed. 23. The appellant Talewar Singh shall be released forthwith from jail, if he is not wanted in any other case, after compliance of section 437(A) Cr.P.C. 24. Let this judgment and order be communicated to the court concerned to ensure the compliance of the order. ———————