M.C. JAIN, J.

(1) THIS Criminal Appeal has been preferred by accused-appellant Siaram against the judgment and order dated 24-10-1980 passed by Sri R. C. Gupta, the then II Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 75 of 1980. He has been convicted under Section 302, I. P. C. read with Section 34, I. P. C. under Section 394, I. P. C. Life imprisonment has been awarded for the former offence and ten years rigorous imprisonment for the latter one. Both the sentences have been ordered to run concurrently. One Lakhan was also tried with him, but he was acquitted.

(2) BROAD spectrum of the prosecution case may be noted. In between the night of 28-29-10-1979 at about midnight an armed robbery was committed at the house of Ballo PW 1 in village Sisora, Police Station Banda, District Shahjahanpur by four persons who looted ornaments from her person and from the person of her husband Rupan. The murder of her husband Rupan was also committed in this incident and injuries were caused to her brother Kandhai. She along with her mother-in-law Rukmini and children had slept in the east faced thatched room situate towards north-west of the inner courtyard of her house. Her husband Rupan and her brother Kandhai had slept in the west faced room situate towards east of the inner courtyard. A small kerosene lamp was glowing in the room in which her husband and her brother were sleeping. At about midnight, four miscreants entered the house. Two of them were armed with lathies and the other two had Soojas (sharp edged weapons). They first went inside the room where Kandhai and Rupan were sleeping. Kandhai had covered his body with a quilt whereas Rupan had covered his body with a blanket. They first removed the quilt of Kandhai who woke up. Then the miscreants removed the blanket of Rupan. He also woke up. Rupan was wearing gold rings in his ears which the miscreants look out. Rupan then raised alarm which was to the disliking of the miscreants and one of them assaulted him with Sooja. Kandhai also raised alarm and he too was assaulted with Sooja. On their alarm, Ballo PW 1 also awoke and she rushed for help. One of the miscreants then caught hold of her inside the inner courtyard and robbed her of her silver Khagaria and Jhanjh which she was wearing on her person. She also raised alarm which attracted the witnesses Chhutkai. Dwarika and Umarao. All the miscreants came out of the northern exit of the house and fled away towards east. Rupan had fallen down from his cot after receiving injuries and had died when Baldeo had reached him. Kandhai was lying injured on his own cot. The report was lodged by her on 29-10-1979 at 8 a. m. The distance of the Police Station from the place of occurrence was 5 miles. None was named in the first information report, but it was mentioned that she and the witnesses had very well seen the miscreants who could be identified on coming face to face. A case was registered and investigation entered into.

(3) INJURIES of Kandhai were examined on 29-10-79 at 1. 30 p. m. by Dr. Lalit Kumar PW 5. He had suffered punctured wound. 5 cm x 2. 5 cm. x. 5 cm deep over left side of chest which had been caused by some sharp edged weapon.

(4) THE dead body of Rupan was sent for post-mortem after preparation of Panchayatnama and other relevant papers. The autopsy over the dead body was conducted on 30-10-1979 at 3. 30 p. m. by Dr. U. C. Srivastava PW 3. As per post-mortem report Ex. Ka-2, he was aged about 40 years and nearly 1-1/2 days had passed since he died. He had sustained as many as five incised wounds on his body on head, hip, middle of left palm, chest and right side of neck. The extensive damage had been suffered by him beneath the injuries and the death had occurred due to shock and haemorrhage as a result of injuries to internal vital organs.

(5) THE present appellant was arrested on 28-11-1979 by S. I. Bhim Singh P. W. 9 at about 1-30 p. m. The said S. I. was posted at Police Station Powayan. He with a few other police personnel had been combing village Tihar situate within the jurisdiction of Police Station Banda in search of certain miscreants during the course of which the present accused-appellant was arrested. On Search being taken, a country made pistol with live cartridges and robbed articles were allegedly recovered from his possession. He was rendered Baparda and was brought to Police Station Powayan where he was kept Baparda in the lock-up. The information regarding his arrest was sent through wireless to Police Station Banda where he was wanted in several cases. S. I. Ranveer Singh (Investigation Officer) P. W. 8 reached Police Station Powayan and interrogated the accused-appellant. The complicity of the present accused-appellant in the offence came to light. The accused-appellant was ultimately lodged in the jail Baparda and was subjected to identification parade conducted by Sri Raj Kumar Singh P. W. 6. an Executive Magistrate on 17-1-1980. He was correctly identified by three witnesses, namely. Kandhai PW-2 Dwarika PW-4 and Chhutkai PW-7. The two other witnesses. namely, Ballo PW-1 and Umarao also participated in the identification parade but none of them picked up the present accused-appellant. The present accused-appellant and Lakhan (against whom there was single identification of Dwarika) were charge-sheeted.

(6) AT the trial, the prosecution examined nine witnesses besides relying on the documentary evidence. Material evidence was of the complainant Ballo PW-1 Kandhai PW-2 Dwarika PW-4 and Chhutkai P. W. 7. The defence case of the present accused-appellant was of denial. According to him, Kandhai P. W. 2 knew him from before; that he was falsely implicated due to enmity; that he had been shown to the witnesses at the Police Station and his photograph had also been taken. However, no evidence had been adduced by him in defence.

(7) LEARNED Additional Sessions Judge acquitted co-accused Lakhan as there was single identification against him, but convicted and sentenced the present accused-appellant on the strength of the evidence of three identifying witnesses against him, namely, Kandhai PW-2 Dwarika P. W. 4 and Chhukai PW-7. Though Ballo PW-1 did not identify him at his identification parade, but her statement was material as to the factum of the incident.

(8) AGGRIEVED, accused Sia Ram has lodged this appeal.

(9) ACCUSED-APPELLANT is represented on record by Sri. N. K. Rastogi, Advocate but he did not turn up to argue not the appeal. We have heard learned A. G. A. from the side of the State in opposition of the appeal and ourselves waded through the record and evidence of the case. Learned A. G. A. has argued that there were three identifications against the accused-appellant and his conviction and sentence are perfectly justified. It has been pointed out that he was arrested within a month of the present incident and was subjected to identification within three months of the incident. It has also been urged that he failed to establish that any of the identifying witnesses knew him from before or had seen him after his arrest but before his identification parade. Learned A. G. A. has reasoned that the accused-appellant could also not show any enmity either with the police or the witnesses on the prosecution side which could have activated them for his false implication.

(10) AFTER bestowing our anxious consideration to the submissions made by the learned A. G. A. in opposition of this appeal and after going through the evidence on record, we are of the opinion that the learned Additional Sessions Judge has convicted the accused-appellant on the basis of traditional and stereo-type evidence as is usually adduced in a case based on identification, without analytically reckoning the over all impact of the voice of evidence and related circumstances. The complicity of the present accused-appellant in this crime is not at all free from doubt and inherent improbabilities stem up from the evidence and related circumstances. We wish to deal with them in the succeeding discussion.

(11) TO begin with, the factum of robbery in question is fully established by the evidence that has been adduced by the prosecution on record. On person was murdered and the other one sustained injuries in this incident. The factum of this robbery was not challenged by the accused-appellant either. The crucial question is the participation or otherwise of the present accused-appellant in this crime. A very important fact that surfaced from the testimony of the complainant Ballo PW I in her cross examinations that the miscreants had muffled up their faces. However, she stated in the very next breath that their faces were visible. It was she at whose house the robbery was committed. Her silver jewellery had also been robbed by the miscreants from her person when she had rushed up for help of her husband and brother. Neither she nor her brother Kandhai PW-2. (injured) stated that there was any grappling with the miscreants. This being so there could hardly be any possibility of the bases of miscreants being visible despite muffling. The very fact that they had muffled their faces, as stated by Ballow WP1, is an indication that they had taken precaution to conceal their identity and their faces could not be visible for being recognised. If no grappling had taken place during the incident, there could hardly be any possibility of uncovering of the faces of the miscreants for being seen either by Ballo PW1 or by Kandhai PW2 who was injured also by one of them with sooja. It is also pertinent to observe that neither Ballo PW1 nor Kanbhai PW2 has given details of the specific role of the present accused-appellant in the commission of this robbery. Even this much could not be disclosed by any of them as to whether he was armed with a lathi or with a sooj a Kandhai PW2 does not say that he or Rupan had been assaulted with sooj by the present accused-appellant. The statement of Kandhai PW2 is also to the effect that he had developed a boil in his thigh and he was not in a position to move. During the course of incident also he kept lying on his cot when Rupan and he himself had ben assaulted by the miscreants. It is doubtful that when he woke up on the uncovering of his quilt by miscreants, he could fix up the features of the present accused-appellant (who, along with other miscreants as per the testimony of Ballo PW1 had muffled up their faces) in his mind in that panicky state to recognize him late in the identification parade. So far as the other two identifying witnesses, namely Dwarika PW4 and Chhutkai PW7 are concerned, they allegedly saw the present accused-appellant while he and other miscreants were running out from the house of the complainant after committing the crime. It is again not free from doubt that they could very well recognize him with the flashing of torches while he was fleeing.

(12) IT is pertinent to mention that Ballo PW1 in whose house the robbery was committed did not identify either the present accused appellant or the co-accused Lakhan at the identification parade and the possible reason could be that the miscreants had muffled their faces. For name sake, it appears that there are three good identifications against the present accused-appellant of Kandhai PW2, Dwarika PW4 and Chhutkai PW7 but it is also relevant to point out that none of them committed any mistake in the parade of another suspect co-accused Lakhan. In fact, their identification evidence against the accused appellant is too good to be believed. Besides. we have related above the reasons of which their identification evidence cannot be safely relied upon against the present accused-appellant. There may be external reasons as to how and why three witnesses rightly picked up accused appellant at his identification parade without any mistake whatsoever.

(13) ANOTHER important aspect of the matter is that no recovery of any robbed article of the present crime was made from the accused-appellant. It may be stated at the risk of the repetition that his complicity is based on the testimony of three identifying witnesses, namely, Kandhai PW2 Dwarika PW4 and Chhutkai PW7. The testimonial assertions of these identifying witnesses do not answer the test of judicial scrutiny. No doubt, an armed robbery did take place as alleged by the prosecution in which one person was murdered and the other (Kandhai PW 2) was injured by the miscreant, but dark clouds of doubt hover as to the participation of the present accused-appellant in this crime. The court cannot convict Peter for Paul. The guilt of an accused should be driven home by clinching, convening and trustworthy evidence which burden the prosecution has failed to discharge.

(14) FOR the discussion made hereinabove, we disagree with the finding of guilt arrived at by the learned Sessions Judge against the present accused-appellant. We find that the complicity of the present accused-appellant in the incident is highly doubtful. Therefore, we allow this appeal and set aside the conviction and sentence passed by learned Additional Sessions Judge against the accused-appellant Sia Ram. He stands acquitted. He is on bail. He need not surrender. His personal bond and bail bonds are cancelled and sureties discharged.

(15) LET a copy of this judgment along with the record of the case be immediately sent to the Court below for necessary entries in the concerned registers under intimation to this Court within two months. Appeal allowed