JUDGMENT Mootham, J. - This application in revision raises a question of some interest. The applicant was convicted at a summary trial by a learned Magistrate of the offence of housebreaking by night, punishable u/s 457 of the Indian Penal Code. There is no doubt that on the night of the 29th May, 1946, the shop of a tailor, Sri Krishan, in village Chautasi, was broken into and a number of articles were stolen, including, according to the prosecution, a piece of shirting measuring some sixteen and a half yards in length. The applicant was suspected of having taken part in the theft, and on a search being made on his promises on the following day a length of shirting, also of about sixteen and a half yards, was discovered. There was no evidence against the applicant other than his possession of this length of shirting, which the prosecution said was the same shirting which had been stolen the previous night from Shri Krishan's Shop. It appears to me clear that this fact, if established, would be insufficient to prove the commission by the applicant of the offence of house breaking-- which involved the entry into the tailor's premises in one of the six ways enumerated in Section 445 of the Indian Penal Code, but it might, of course, be sufficient to prove that the applicant either stole the shirting or received it knowing it to be stolen property. 2. The applicant's case was that the shirting found in his house was his own, and was what remained of a longer piece which had been in his possession for some months; and the first question which therefore arose was whether the shirting found in the applicant's house was or was not the identical shirting which had been stolen from the tailor's shop. 3. The trial of the applicant was, as I have said a summary one, and there is therefore no record of the evidence other than such as is to be found in the judgment of the learned Magistrate. According to this judgment the length of shirting found in the applicant's house was identified, as the shirting which had been stolen, by Sri Krishan and two other persons, Ram Swarup and his brother Babu Ram, but the judgment gives no identification of the basis on which this identification was male. According to this judgment the length of shirting found in the applicant's house was identified, as the shirting which had been stolen, by Sri Krishan and two other persons, Ram Swarup and his brother Babu Ram, but the judgment gives no identification of the basis on which this identification was male. When a witness identifies an article he is in reality giving expression to an opinion or conclusion which he has reached as the result of his observation of certain facts, namely the points of resemblance between the thing which he is identifying and that with which it is identified. These points of resemblance are always of importance, and they become of very great importance when, as in this case, the object of the identification was a bare length of material which, it would seem, was of a common kind possessing no particular characteristic features either of quality, design or colour. The applicant produced three shirts, which he said were made out of the material which he had purchased and, whether his story be true or not, these three shirts appear to be made of exactly similar material. 4. The learned Sessions Judge felt the difficulty which arises in this case from the fact that the judgment of the learned Magistrate contains no record at all of the facts upon which the witnesses based their identification of the shirting. Sub-section (1879) 1 All 680 of Section 264 of the Code of Criminal Procedure provides that in an appealable case tried summarily by a Magistrate the latter shall record a judgment embodying, inter alia, the substance of the evidence. In Empress of India v. Karan Singh (1879) 1 All 680 it was pointed out that it is important that the evidence should be so set forth in the judgment as to enable the appellate Court to exercise its functions as a Court of appeal, and that the prisoners right of appeal must not be defeated in consequence of an imperfect statement of the substance of that evidence. Now it appears to me that when the question of the guilt of an accused person turns upon the identification of property, than the "substance" of the evidence on this matter must include the facts upon which the witness bases his conclusion as to the identify of that property It is not, in, my opinion, a sufficient compliance with the provisions of Sub-section (1879) 1 All 680 of Section 264 for the record merely to contain a bald statement that the witness identified the article in question; for that does not seem to me to be a record which embodies the substance of his evidence--unless of course the witness merely said that he identified the articles and no more, in which case his evidence is clearly of very little, if any, value at all. 5. In the present case I am of opinion that either the evidence of identification was of no value, or alternatively that the learned Magistrate's failure to set forth the substance of the evidence has resulted in prejudice to the accused; and I am therefore, bound to allow this application and to set aside the conviction and sentence. I have considered whether I ought to order a retrial, but in view of the small value of the property the subject of the charge and the other circumstances of the case, I do not think retrial is called for. 6. The conviction is quashed and the sentence set aside; the fine, if paid, will be refunded.