R.C. Patnaik, J.
1. Rajkishore Sahu, the appellant in jail Criminal Appeal No. 75 of 1980 and Jogindra Pradhan, the appellant in Jail Criminal Appeal No. 79 of 1982, have preferred these appeals against their conviction under Section 394 of the Penal Code and sentence of rigorous imprisonment for eight years imposed on each. Originally there were four accused persons charged under Section 395 of the penal Code. On a consideration of the materials, the learned Assistant Sessions Judge found that charge under Section 395 of the Penal Code had not been brought home as the number of culprits was less than five. He also found that there was no evidence against the accused persons other than the appellants So, while acquitting the other accused persons, he convicted the appellants as aforesaid.
2. The prosecution alleged that around 2 to 3 a. m. on 23-10-1974 somebody knocked on the front door of the house of Chakradhar Sahu, the informant, with a heavy instrument. When the door was opened, two persons entered inside. One of them gave a blow to the informant with the instrument he was holding. Appellant Jogindra Pradhan kept guard on him and appellant Rajkishore entered inside the room. They were wearing half pants and half shirts and had covered their heads. Appellant Rajkishore removed a chain from the neck of the daughter of the informant. Though they ransaked the house, they could lay their hands on no other valuables and left. The next morning the Investigating Officer came to the village of the informant and the F.I.R. was lodged with him.
5. Nothing was recovered in the course of investigation. In a test identification parade, the informant identified the appellants.
4. Prosecution examined four witnesses. P. W. 1 was the informant. P. W. 2 was the Investigating Officer. P. W. 3 was the Magistrate who recorded the confessional statement of Narendra, a co-accused, and P. W, 4 was the Magistrate who recorded the confessional statement of appellant jogindra. Besides the prosecution relied upon the confessional statement made by Jogindra, Ext. 5.
5. The plea of the appellants vva's one of denial of the occurrence.
6. The learned Assistant Sessions Judge relying upon the identification made by P. W 1 in the court corroborated by the identification made by him in the T. I. parade and the evidence of P. W. 1, convicted appellant Rajkishore Sahu. Relying on the aforesaid evidence and the confessional statement made by Jogindra, the learned Assistant Sessions Judge also convicted appellant Jogindra and sentenced each of them as aforesaid.
7. Mr. Jairai Behera the learned Counsel for the appellants, assailed the judgment on the following grounds :--
(a) The learned trial Judge fell into an error by relying upon the confessional statement which apart from serious infirmities vitiating the proceeding, did not relate to the alleged crime which was the subject-matter of the indictment.
(b) Having regard to paucity of materials relating to identification of the, accused persons in the F.I.R. and in the evidence in court, the identification in the T. I. parade was valueless; and
(c) Adverse inference was available to be drawn from non-examination of other witness witnesses by the prosecution alleged to be present at the time of occurrence. He also submitted that non-examination of any villager before whom P. W. 1 narrated the incident, entitled the defence to view the evidence with suspicion.
8. The first submission of the learned Counsel is incontrovertible. The statement. Ext. 5, contains the narration of incidents other than the alleged incident in the house of p. W. 1 in village Kamaladihi which is the subject matter of the charge. The confessional statement, therefore, has no relevance and is not a confessional statement at all in respect of the crime alleged to have been committed bv the appellant Jogindra. Reliance thereon by the learned Assistant Sessions Judge is, therefore, misconceived.
9. The second contention of the learned Counsel is equally formidable. P, W. 1 admits that there was no light in his house. The house was enveloped in darkness. Two persons wearing black pants and black shirts entered his house It appeared to him as if those persons had painted their faces black. He did not give any particulars or description of the culprits either in the F. I. R or in his evidence. No clue was given in the F.I.R. or in his statement under Section 161 of the Code of Criminal Procedure to enable the Investigating agency to identify the culprits and apprehend them. He did not furnish any peculiar feature or identifying mark which could enable him to identify the culprits in future. The occurrence took place on 23-10-74. The test identification parade was held on 19-6-75, Appellant Jogindra was arrested on 24-1-75. A test identification parade held eight months after the occurrence with no clue given by the identifier in any of his earlier statements to the identity of the culprit is not of much assistance. In Wakil Singh v. State of Bihar : 1981CriLJ1014 their Lordships observed :-.None of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity, nor did the witnesses give any identification marks viz stature of the accused or whether they were fat or thin or of a fair colour or of black colour. In absence of any such description it will be impossible for us to convict any accused on the basis of a single identification in which case the reasonable possibility of mistake in identification cannot be excluded ....
Their Lordships also attached importance to the gap between the commission of the crime and the identification in the test identification parade. In the case before the Supreme Court, the gap was of three and a half months and their Lordships said..The High Court also ignored the fact that the identification was made at the T. I. Parade about 3 months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember the features of the accused and he is. Therefore, very likely to commit mistakes ....
As I have already said, p. W. 1 had given no particulars or description of the features of the culprits. On the other hand the circumstances narrated by him cast doubt on his capacity to identify. The room was dark and as staged by him, the culprits- had painted their faces black. So, in my. view, the identification made by P- W. 1 in court corroboration whereof was sought from earlier test identification parade was valueless.
10. The third contention of Mr. Behera appears also to be sound. No explanation has been given as to why the daughter of PW 1 from whom the chain was removed was not examined. Nor was any villager before whom PW 1 narrated the incident was tendered as a witness.
11. The sum total of the aforesaid consideration is that there was no material before the learned Assistant Sessions Judge for convicting the appellants. So, I hold that the charge under Section 394 of the Penal Code has not been brought home to either of the appellants and they are. therefore, entitled to be acquitted.
12. These are my reasonings for my order dt. 12-4-83 acquitting the appellants and directing their release forthwith.