The refusal to participate in the test identification parade cannot be the sole basis for conviction. The primary evidence is the identification in court.

1. The appellants have been tried by the Additional Sessions Judge, Kapurthala for the offence under Section 392 read with the Section 34, I.P.C.and were convicted and sentenced to undergo R.I.for a period of 7 years and to pay a fine of Rs. 500/- each.

2. According to the case of the prosecution when the complainant Abdul Hamid along with his wife was going to the village Nawan Thatha to get some medicines for his wife on his Bajaj Scooter bearing registration No. PUX-601, both the accused stopped him and by threatening to shoot with a revolver took away the scooter from him. Thereafter Abdul Hamid went to the Police Station and gave a complaint on the basis of which a case under Section 392 read with Section 34, I.P.C.was registered. After completion of investigation, the police filed the chargesheet and the learned Magistrate committed the case for trial to the Court of Sessions who framed a charge against the accused under Section 392 read with Section 34, I.P.C.

3. In order to prove the guilt of the accused, the prosecution examined the complainant Abdul Hamid and the Investigation Officer Gursharan Singh and one Swaran Singh, Clerk in the Transport Office. After completion of the prosecution evidence, the statements of the accused under Section 313, Cr. P.C.was recorded. The learned Additional Sessions Judge on a consideration of the evidence on record convicted and sentenced the accused as referred to above. Aggrieved by the conviction and sentence, the appellants preferred this appeal.

4. PW-1 is the Additional Chief Judicial Magistrate who deposed that the accused refused to participate in the test identification parade. PW-2 is the complainant. His evidence shows that the accused have not been identified as the person who threatened him while taking the scooter from him at the point of revolver. Thus the complainant did not identify the accused in the Court. The evidence of PW-3 also shows that he recovered the scooter from the possession of the accused. PW-4 who was Clerk in the Transport Office deposed that the scooter which was said to have been stolen by the accused was in the name of PW-2.

5. The learned Public Prosecutor strongly placed reliance on the fact that the accused who were to be identified through the test identification parade refused to participate in the same. In view of this fact, an adverse inference can be drawn. I do not agree with this contention of the learned counsel. The test identification parade does not furnish a substantial evidence. The accused were to be identified in Court. When the complainant Abdul Hamid PW-2 did not identify the accused in Court, no adverse interference can be drawn by the refusal of the accused to participate in the test identification parade. The evidence given in Court is the primary evidence. Therefore, I am of the opinion that the conviction cannot be based on the refusal of the accused to participate in the test identification parade. Therefore conviction under Section 392 read with Section 34, I.P.C.cannot be sustained.

6. The evidence of PW-3 who is the Investigating Officer clearly shows that the scooter was recovered from the possession of the accused. The evidence of PW-4, who was Clerk in the Transport Office, also shows that the scooter was registered in the name of the complainant. The accused have not been able to explain how they came into possession of the scooter.

7. In view of my above discussion, I set aside the conviction and sentence of the accused under Section 392 read with Section 34, I.P.C.and convert the same under Section 411, I.P.C.for being in possession of the stolen property. The accused have been in jail during the pre-trial stage and also after their conviction on 25-2-1987. It was only on April 2, 1987 the accused were directed to be released on bail. Thus the accused have been in jail for about six months. Further the appeal is of the year 1987.

8. In the circumstances, I am of the opinion that the sentence to the period