The suspicion, howsoever strong, cannot take the place of proof of guilt. Mere recovery of the gun license is insufficient to establish guilt, especially when the identification of the accused is disbelieved. Lapses in the investigation can impact the credibility of the prosecution's case.

Per: MIHIR KUMAR JHA, J.

This appeal has been filed by the sole appellant Guru Prasad Singh, who has been convicted under section 396 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for life by the impugned judgment dated 19.4.1990 passed by the 2nd Addl. Sessions Judge, West Champaran, Bettiah in S.Tr. No. 271 of 1982 arising out of Semra P.S. Case No. 2/1982.

2. The prosecution case as may be culled out from the version of the informant Ram Chandra Yadav (P.W.8) in nut shell is that in the night of 19/20th July, 1982 a dacoity was committed in the house of his father Panchu Yadav (P.W.7) and in course of such dacoity while Panchu Yadav was severely assaulted, his son Bishwanath Yadav was also done to death by the miscreants. Though none has been named in the fardbeyan of the informant as the members of the dacoits but it has been claimed that the dacoits themselves were flashing torch light and had also put fire in the straw stored in the house of Panchu Yadav and as such, the dacoits who were given their description by physical feature could be identified. It is also claimed by the informant that the gang of dacoits consisting of 15-16 persons, having committed the dacoity and also killing Bishwanath Yadav and injuring Panchu Yadav in course of such dacoity had fled away from the occurrence after arrival of the villagers whereafter when the aforesaid Bishwanath Yadav in an injured condition was being removed to the hospital, he had succumbed to his injuries in the way.

3. Thus, this First Information Report lodged under section 396 I.P.C. against unknown persons on the version of the informant had led to institution of Semra P.S. Case No. 2/1982 and the police in course of investigation having taken aid of adjacent police station in Khadda Police Station, in the State of U.P., had collected proof as with regard to involvement of the appellant and four others, namely, Ramdhani Yadav, Ranjan Kumar Gupta, Mahendra Nath Pandey and Ramakant Kewat (since dead) and having found sufficient materials as with regard to their involvement in the occurrence in question had filed charge sheet on the basis of Test Identification Parade (in short T.I.P.) conducted on 20.10.1982. All of them were subsequently put on trial and by the impugned judgment while remaining co-accused, namely, Ramdhani Yadav, Ranjan Kumar Gupta and Mahendra Nath Pandey have been acquitted on the ground of disbelieving their identification in the T.I.P., the sole appellant has been convicted on an additional ground of recovery of his gun licence.

4. Assailing the impugned judgment Mr. Onkar Nath, learned counsel appearing as Amicus Curiae, has submitted that once the trial court had disbelieved identification of the co-accused on the basis of tainted T.I.P., there was no reason for the appellant to have not been given the same benefit. In this regard he has also criticized the impugned judgment by taking a specific plea that mere recovery of gun licence of the appellant cannot be used as a circumstance for also holding that the appellant was one of the members of dacoit which had committed the occurrence in question. He has also in this regard submitted that when the Investigating Officer himself did not recover the gun licence, the reliance placed by him on the version of P.W.4 Rudal Yadav and P.W.5 Sarwan Mahto as with regard to alleged recovery of gun licence by them would not inspire confidence, especially when they have failed to explain the actual place of recovery of such gun licence. He has also highlighted that the crucial documentary evidence Ext.10 though being a carbon copy and yet having the original thumb impression of P.Ws. 4 and 5 and the signature of P.W.2 and P.W.6 would create a grave doubt as with regard to genuineness of not only the document in question but the whole story of production of gun licence in the manner indicated by the prosecution. He has also additionally submitted that there are several other confl