JUDGMENT
P.K. Misra, J.
1. The two petitioners along with two others were convicted by the trial Court under Sections 458 and 395, Indian Penal Code, and sentenced to undergo R.I. for five years and to pay a fine of Rs. 1,000/- in default, to undergo R.I. for two months on each count. The present petitioners filed Criminal Appeal No. 129/94, whereas the two co-accused persons filed Criminal Appeal No. 132/94 and Jail Criminal Appeal No. 16/95. All the three appeals were disposed of by one common Judgment. The appellate Court altered the conviction under Section 395 to one under Section 394, Indian Penal Code, and reduced the substantive sentence to four years R.I. The conviction under Section 458, Indian Penal Code, was sustained, but the substantive sentence was also reduced to four years R.I..
2. The occurrence took place in the midnight of 28.3.1993/29.3.1993 in village Nirani Maliguda and F.I.R. was lodged at 9 A.M. on 29.3.1993. In the F.I.R. it was indicated that brother of one Buti Domb along with five other unknown culprits committed the crime. Four persons including accused Dhanurjaya Takiri, the brother of Buti Domb, were apprehended and charge-sheeted.
3. The plea of the accused persons was one of denial.
4. The houses of P.Ws. 1, 5, 6, 7 and some others who have not been examined burgled. The order of conviction is based on the evidence of those witnesses as well as on the basis of statement of accused Trilochan Harijan leading to discovery of ornaments (M.Os. I. II and III) from the house of goldsmith (P.W.9).
5. Since the revision has been filed by two of the convicted persons, the discussion is confined to materials against the present petitioners. The appellate Court has observed that these two petitioners had been identified by P.Ws. 1 and 5 in Court during trial. This is an error of record, inasmuch as P.W.1 had identified petitioner No. 2 only. So far as identification by P.W. 5 in concerned, he stated in a general manner that all the four accused persons in the dock were the culprits. Though the accused persons had been apprehended after about 10 days of the incident, no test identification parade had been held. The witnesses were deposing about the incident after more than a year. In the absence of any test identification parade, the vague and omnibus evidence of P.W. 5 to the effect that all the four accused persons standing in the dock were the culprits does not inspire much confidence. Similarly, the evidence of P.W. 1 implicating petitioner No. 2 to be one of the culprits without specifying the actual role of the said accused, and in the absence of any test identification parade, does not inspire much confidence. Moreover, another eye-witness had stated that the culprits had partially covered their faces. The other eye-witnesses have not identified the two petitioners. In such view of the mater, it would be difficult to sustain, the conviction on the basis of identification by some of the witnesses in Court in the absence of any corroboration by way of test identification parade.
6. Of course, the trial Court had relied upon the factum of recovery of some ornaments from P.W. 9 on the basis of statement of accused Trilochan Harijan. If such statement of Trilochan Harijan leading to discovery of stolen Articles is accepted, the same can be pressed into service for the purpose of corroborating the evidence of witnesses regarding identification of the said accused. However, on perusal of the record, it is found that the evidence relating to such statement of accused Trilochan Harijan leading to discovery of ornaments appears to be indefinite and unacceptable. As per the statement of the Investigating Officer, the statement was made by Trilochan Harijan, on the basis of which Articles were recovered from the house of P.W. 9. P.W.9. however, has stated that the police officer came along with the two petitioners and accused Dhanurjaya Takiri and all of them stated that the ornaments had been sold by Dhanurjaya Takiri to P.W.9. In other words, the evidence of P.W.9 indicates as if the statement had been made by three accused persons including the two petitioners. When the identification in Court has been found to be doubtful, it would be difficult to hold that the so-called statement of petitioner No. 1 leading to discovery of ornaments is sufficient to uphold the conviction.
7. In view of the aforesaid discussion, I am inclined to extend the benefit of doubt to the petitioners. Accordingly, the order of conviction and sentence is set aside.
The Criminal Revision is allowed.