JUDGMENT K.N. Ojha, J.
1. Instant appeal has been preferred against the order of conviction and sentence dated 15.1.1981 passed by Shri S.K. Agnihotri, VIth Addl. Sessions Judge, Aligarh in Sessions Trial No. 166 of 1980 by which the appellant was convicted under Section 395 I.P.C. and was sentenced to undergo 5 years R.I.
2. Heard Shri S.S. Rajput and Shri M.S. Rajput, learned Counsel for the appellant and Shri N.L. Srivastava, learned AGA and have gone through the records.
3. According to prosecution, a dacoity was committed at the house of Har Prasad in village Bisawanpur Oontgir, P.S. Harduaganj, District Aligarh in the night intervening 15th and 16th days of July, 1979, at about 8.45 p.m. Eight or nine miscreants participated in the crime. It was stated that Har Prasad was busy in offering prayer on the upper story of the house and other family members were present in different places of the house. Kailash Chandra, S/o Har Prasad was listening the radio. The miscreants caused injuries to Har Prasad, Kailash Chandra and Durga Prasad. Besides looting other properties, they looted one licensed double barrel gun of Har Prasad along with the belt of cartridges. Miscreants were seen in the lantern light and torches. The dacoits were successful in making their escape good along with the booty. The miscreants have injured Har Prasad. After they left the place, Brijmohanlal, the brother of Har Prasad came and got the F.I.R prepared and handed it over at the Police Station on 16.7.79 at about 3 a.m. The police station is at thedistance of 6 k.m. away from the place. It is said that Mumtaz was arrested and licensed gun was recovered by the police. He was again sent for identification parade and it is stated that he was identified by Har Prasad and Kailash.
4. The appellant denied his participation in the crime. He also alleged that he was always kept without purdah and was shown to the witnesses at the police station and while carrying to Court before test identification. However, the accused appellant did not produce any oral evidence. The prosecution examined P.W.I Constable Taley Singh, P.W. 2 Constable Rajendra Singh, P.W. 3 victim Har Prasad, P.W. 4 Brjjmohan, brother of the victim, P.W. 5 Kailash Chandra, son of Har Prasad, P.W. 6 S.I. O.P. Sharma, P.W. 7 Narendra Kumar Sharma, Station Officer and P.W. 8 B.N. Dixit, the Sub-divisional Magistrate, Aligarh.
5. In the instant case, the occurrence is said to have taken place in the night of 15/16th July, 3979 and it is in the light of lantern and torches in which miscreants were seen by the witnesses. There are two types of evidence against the appellant's, one is that he was identified in jail and Secondly, gun of complainant Har Prasad was recovered from his possession. To prove the fact that gun was recovered from the possession of Har Prasad, P.W. 7 Narendra Kumar Sharma, Station Officer stated that he arrested the accused in the night of 8th and 9th of November, 1979 at the Talib Nagar Dharamstiala along with certain other miscreants and Mumtaz was found in possession of Double Barrel Gun No. 2634 of Har Prasad. He also stated that recovery was made in the presence of witnesses Tripal Singh, Diwakar Khan and Satyveer Singh. He also stated that the accused was Baparda and brought him in that state to police station. P.W. 7 Station Officer Narendra Kumar Sharma stated that he had matter raid at about 11-30 p.m. but the number of gun which was inscribed on the gun recovered from Mumtaz was not legible as its numbers were robbed-out. He also stated that this gun was not sent to experts to ascertain its number. Besides it, none Of the three public witnesses i.e, Tripal Singh, Diwakar Khan and Satyaveer Singh, in whose presence the recovery of gun is said to have been made from the possession of the appellant, has been examined. Therefore, recovery of gun from the possession of Mumtaz cannot be taken to be proved. Next evidence against the appellant is of identification.
6. According to prosecution, the dacoity is said to have been committed in the night of 15/16th July, 1979 at about 8-45 p.m. Identification of Mumtaz is said to have been got done on 30.11.79, about 4 1/2 months after the occurrence. Identification memo dated 30.11.79 shows that Har Prasad and his son Kailash correctly identified mumtaz in jail. But the performance of these two witnesses was 20%, because they could not recognize other four accused persons. Besides it, the learned Counsel for the appellant has relied on Soni v. State of U.P. in which it has held by Hon'ble the Apex Court when identification was conducted after lapse of 42 days from the date of arrest of the appellant, the delay in holding identification parade shows about the genuineness there of, apart from the fact that it is difficult that after lapse of such a long time, the witnesses would be remembering facial expression of the appellant. Mithoo Singh v. State of U.P. in Criminal Appeal No. 3181 of 1979 decided by this Court on 16th October, 1995 was also relied in which it was held that if test identification parade was conducted after more than 54 days of dacoity, after lapse of such a long time, the memory is bound to fail and that is also responsible for bad performance of the witnesses. It was held that play of imaginations is bound to creep in such matters and the purpose of witnesses cannot be said to be good enough in convicting the accused. In the instant case, identification was conducted about 4 1/2 months after the occurrence while the light on the spot is said to have been glowing lantern at the house of the victim and torches of the miscreants.
7. In these circumstances, if identification parade was conducted about 135 days after the occurrence, the identification cannot be said worth to be relied upon.
8. In this case, as is evident from the F.I.R., the following articles were looted :-
1) 2 pair pandle
2) 4 golden bangles
3) 2 golden rings
4) One pair Ale golden
5) One pair Golden ear ring
6) Two pair silver stripes
7) 2 pair todia
8) 8 pair broken todia
9) 2 pair silver Jhanjh
10) 3 band transistor
11) One Male watch HMT
12) One female watch HMT
13) JAICO Timepiece watch
14) Two pants
15) Two shirts
16) one gun Except one gun, none of these article were recovered from the possession of the appellant or any other miscreants or on the pointing out of the appellant, which may corroborate the involvement of the appellant in the commission of the crime. Thus, when there are two types of evidence against the appellant, one is identification which was conducted with inordinate delay and another is recovery of gun in respect of which even single witness out of the three has not been examined, the evidence adduced against the appellant can not be taken to be sufficient to bring the guilt home to the accused on charge of 395 I.P.C.
9. The appeal is allowed. The impugned order of conviction and sentence dated 15.1.1981 of appellant Mumtaz under Section 395 I.P.C. is set aside. He is acquitted from the charge. He is in jail. He be released forthwith.
10. Let a copy of the judgment be sent to learned VIth Additional Sessions Judge, Aligarh for issuing orders and for release of Mumtaz from jail and to report to this Court immediately.