JUDGMENT A.P. Srivastava, J. - These are two connected appeals arising out of the same case and can therefore be conveniently disposed of together. 2. Chhotey Lal, Hoti son of Jhandi, Bhisham and Khushi Ram are the appellants in appeal No. 651 and Shri Prasad is the only appellant in appeal No. 737 of 1956. All these five appellant have been convicted by the Sessions Judge of Mathura under Sec. 896, I. P. C. and each of them has been sentenced to imprisonment for life and also to pay a fine of Rs. 100/- or in default to undergo rigorous imprisonment for one year. 3. It appears that a dacoity was committed in the night between the 14th and 15th of October 1954 at about 10.30 a.m. at the shop of Prem Raj in village Mangarhi, Police Station Naujhil, District Mathura. About 20 or 22 dacoits are alleged to have forcibly entered the shop of Prem Raj. They began to beat Prem Raj with lathis. He started crying and raised an alarm. The dacoits, however, managed to remove cloth and other properties which were there in the shop. The dacoity continued for an hour. Prem Raj was there in the shop along with his mother, daughter and two sons Kishan and Bilhambhar. The dacoits were armed with fire-arms and some of them went to the roof of the shop and threatened the villagers not to come near. They said that in case they did, they would be fired upon. On hearing the alarm many of the village people collected near the shop of Sundari Bania. Some collected near the shop of Khazan Jat. They were, however, not allowed to go near the shop of Prem Raj. After the dacoits had looted the shop to their satisfaction they decamped from the place. As soon as they started going away the villagers gathered courage and led by the sons of Prem Raj they began chasing the dacoits. The dacoits fired two shots at the villagers near the field of Budhi Jat and directed them to go back. The shots hit Kishan, Girdhari, Matoli and Lachhi Ram. Lachhi Ram succumbed to the injuries which he received. The villagers who were chasing the dacoits, however, overtook and hit them with lathis. One Bikram snatched a potli of clothes which one of the dacoits was carrying. The shots hit Kishan, Girdhari, Matoli and Lachhi Ram. Lachhi Ram succumbed to the injuries which he received. The villagers who were chasing the dacoits, however, overtook and hit them with lathis. One Bikram snatched a potli of clothes which one of the dacoits was carrying. Another person Har Lal caught one of the dacoits from behind. That dacoit was carrying a pistol which happened at that time to be unloaded. With that pistol he hit Har Lal and caused a simple injury. The pistol was, however, snatched from him and that dacoit was not allowed to run away. He is alleged to be Chhotey Lal appellant. A report about the dacoity was lodged at 4 a.m. the next day by Jhamman Lal, brother of Prem Raj. Investigation was started and as a result of enquiry the five appellants were committed to the Court of Session to stand their trial under Sec. 396, I.P.C. The learned Sessions Judge acquitted nine of the accused persons and we are therefore not concerned with the cases of those persons. He found that the five appellants had taken part in the dacoity and therefore convicting them under Sec. 396, I.P.C. sentenced them as mentioned above. 4. The factum of the dacoity has not been questioned before us, and it is therefore unnecessary to discuss the evidence which had been led by the prosecution to show that a dacoity was actually committed. It is also not disputed that in that dacoity several persons received injuries. Thus Girdhari Lal, Kishni and Matoli had gunshot wounds. Har Lal who had been hit with the pistol had a contused wound. Prem Raj had seven contusions and a scratch. Lachhi Ram had several gunshot wounds and died as a result of the injuries which he had received. The dacoits thus used firearms and lathis in course of the dacoity and as Lachhi Ram was shot dead the persons who are found to have taken part in the dacoity must be convicted under Sec. 396, I.P.C. The main question which we have before us in these appeals is whether the appellants or any of them really took part in the dacoity as alleged by the prosecution. 5. 5. So far as the appellant Chhotey is concerned, he is said to have been caught red handed on the spot while the dacoits were running away and were being chased by the village people. Har Lal states that he caught Chhotey Lal appellant from behind Chhotey wanted to get himself released. He had a pistol with him. The pistol was unloaded and therefore he could not shoot. He, however, hit Har Lal with that pistol and caused him a contused wound. The pistol was, however, snatched from him and Chhotey Lal appellant was not allowed to run away. The pistol which was snatched from Chhotey Lal is Ex. 1. 6. The defence which Chhotey Lal set up was that he had gone to the neighbouring village Khajpur for purchasing she-buffaloes. In that connection he had gone to village Mangarhi also. A dispute had taken place between him and some of the villagers of Mangarhi. His suggestion was that he had been implicated on account of that dispute. He examined one witness Ramji Lal (D.W. 2) in his defence. This witness admitted that Chhotey Lal had been caught in the field of Budhi. Now if Chhotey Lal had gone to purchase she-buffaloes why should he have been there in the field of Budhi when the dacoits were retreating and why he should have been carrying a pistol. if he had been caught on account of being mistaken for a dacoit there was no sense in his hitting Har Lal with the pistol. The evidence of Ramji Lal does not appear to be reliable at all and the learned Sessions Judge appears to us to have been perfectly justified in holding on the basis of the evidence that was on record against this appellant that he was among the dacoits. 7. The evidence against the remaining appellants consists only of identification. in this case four identification parades were held on the 15th of November 1954, 4th of December 1954, 4th of January 1955 and the 15th of February 1955. The dacoity as we have stated above, had taken place in the night between the 14th and 15th of October 1954. 7. The evidence against the remaining appellants consists only of identification. in this case four identification parades were held on the 15th of November 1954, 4th of December 1954, 4th of January 1955 and the 15th of February 1955. The dacoity as we have stated above, had taken place in the night between the 14th and 15th of October 1954. It was contended on behalf of the appellants that for correctly assessing the value of the evidence of the witnesses who identified the various accused persons in these four identification parades we should take into consideration not only the result of the test identifications in which these appellants were put up for identification but also the result of the other three identification parades in which the appellants did not participate. It is contended that if that is done it will be found that none of the witnesses on whose evidence the learned Sessions Judge has placed reliance can be considered to be a reliable witness because considering the correct and incorrect identifications made by them in all the four parades the percentage of correct identifications in the case of each witness falls much below the mark. The reply of the learned counsel for the State on the other hand is that in the case of each appellant we should take into consideration the result of that identification parade only in which that particular appellant was put up for being identified by the witnesses and the other identification parades should not taken into consideration at all. 8. The principle for the evaluation of the result of identification parades when several have been held in a case was laid by a Division Bench of this Court in the case of State v. Wahid Bux, 1952 A.L.J. 568 There it was laid down:- "Normally the result of identification proceedings in which a particular accused was put up must alone be taken into consideration in deciding this question. It is upon the basis of It that it must be held whether identification is good and reliable or fit to be discarded. Other identification proceedings in which the particular accused was not put for identification and other accused were put up are immaterial except in so far as an inference may be drawn against the power of observation of the witnesses. Other identification proceedings in which the particular accused was not put for identification and other accused were put up are immaterial except in so far as an inference may be drawn against the power of observation of the witnesses. This inference may be drawn from these other identification proceedings when they were held either prior to the identification proceeding relating to the particular accused or simultaneously with or shortly after it. But no conclusion can be drawn from these other identification proceedings if they were held long afterwards, because by the lapse of time a witness may lose that freshness of impression which he might have retained at the time when the proceeding connected with the particular accused was held. Therefore identification proceedings held long after the particular proceeding with which the court is concerned should not be taken into consideration in weighing the evidence of identification with regard to a particular accused." 9. The question again arose in Sunder and others v. State, 1958 A.L.J. 19. In that case four identification parades had been held on the same date and four different accused persons had been put up in these different parades separately. The question was whether the results of all the parades were to be taken into account or not. It was laid down. "It appears that four identification parades were held by the Magistrate on ,ane and the same date in the district jail of Fatehpur in which each of Sunder, Raghuraj and Gajraj appellants and the acquitted accused Indrapal was put up for identification separately. Thus, only one accused was put up for identification in each parade. The learned counsel submitted that the evidentiary value of a witness against all the accused should be judged in the light of the cumulative result of all the four parades and not of the particular parade in which he may have identified a particular accused. This submission is well-founded and should be given effect to because all the four tests, were held on one and the same date." 10. In the case of Ram Autar v. State, 1958 A.L.J. 431 a similar question arose again. This submission is well-founded and should be given effect to because all the four tests, were held on one and the same date." 10. In the case of Ram Autar v. State, 1958 A.L.J. 431 a similar question arose again. It was argued 'on behalf of the appellants that where there had been more test identifications than one the evidentiary value of witnesses of identification should be considered not only with reference to the particular test identification in which that accused may have been put up but with reference to the other test identifications as well in Which he may not have been put up. This contention was repelled with the remark:- "This goes too far since the correct rule is that normally the result of identification proceedings in which a particular accused is put up must alone be taken into consideration in deciding the value of 'identification of a particular witness with respect to that accused. Other test identifications in which the accused in question was not put up may be taken into consideration for appraising the power of observation of witnesses only if those tests were held so soon after the test in which the particular accused was put up that the intervening period may reasonably be said not to make any difference to the memory of the witnesses." 11. The case of State v. Wahid Bux, 1952 A.L.J. 19 (Surpa) was referred to and followed. 12. The principle which thus emerges is that normally in assessing the value of the evidence of identifying witnesses against a particular accused person the result of the identification of that parade only is to be taken into account in which that particular accused was put up for test identification. Subsequent identifications which have taken place long after the identification parade in which that particular accused was put up should not be taken into account at all. Prior or simultaneous identification parades or those which have taken place shortly after the identification relating to that particular accused can be taken into consideration but only for judging whether the witness had adequate power of observation or not. 13. If we apply this principle to the present case we will find that so far as the appellant Khushi Ram is concerned he was put up for identification only on the 15th of February 1955 about four months after the dacoity had taken place. 13. If we apply this principle to the present case we will find that so far as the appellant Khushi Ram is concerned he was put up for identification only on the 15th of February 1955 about four months after the dacoity had taken place. Three earlier identification parades had been held and the same witnesses had identified some accused persons who had been put up at those earlier parades. At the time of those earlier parades the minds of the witnesses were obviously more fresh. For judging the value that is to be attached to the identification of the witnesses who identified this appellant Khushi Ram at the parade dated the 15th of February 1955 we can take into consideration the results of the earlier identification parades because that will show how far the power of observation of the witnesses could be relied upon. The other three appellants, Hoti, Bhisham and Shri Prasad, were put up for identification at the parade which was held on the 15th of November 1954. The result of the identification in that parade will of course be taken into consideration so far as these appellants are concerned. The subsequent identification parades were held at the intervals of about a month each and cannot therefore be taken into account for any purpose so far as these three appellants are concerned. 14. Now so far as Khushi Ram is concerned, at the identification parade dated the 15th of February 1955 at which he was put up he was identified by four witnesses, Bishambhar, Boocha, Hukam Singh and Matoli. In that parade Boocha and Hukam Singh identified this appellant but also committed one mistake each. The correctness of their identification was therefore only fifty per cent. So far as that particular parade was concerned. Their earlier record also does not appear to have been very good. If all the four identification parades are taken into consideration Boocha will be found to have identified seven correct persons and four wrong persons. Hukum Singh identified four correct persons and picked out seven wrong persons. Hukam Singh cannot in the circumstances be considered to be a good witness of identification. Bishambhar and Matoli committed no mistakes at all in the parade dated the 15th of February 1955. Matoli identified this appellant only while Bishambhar identified this appellant and one other accused person. Hukum Singh identified four correct persons and picked out seven wrong persons. Hukam Singh cannot in the circumstances be considered to be a good witness of identification. Bishambhar and Matoli committed no mistakes at all in the parade dated the 15th of February 1955. Matoli identified this appellant only while Bishambhar identified this appellant and one other accused person. Taking all the four identification parades in view, Bishambhar had identified five persons correctly and had committed three mistakes while Matoli had identified three persons correctly and had committed two mistakes. These three witnesses can therefore be considered to be fair witnesses and we would have attached importance to their evidence but for the fact that so far as Khushi Ram is concerned there is one important factor which takes away the entire value of his identification. It is admitted by several witnesses, including the jailor and the Magistrate who got the identification parade conducted that this appellant Khushi Ram is an exceptionally tall person. His height is 6'1". Special precautions were therefore necessary in connection with the identification parade in which up was put up so that all possibility of his being identified on account of his height be excluded. Immediately after the parade a complaint was made in this respect. An application (Ex. D. 1) was made on behalf of this appellant in which this fact was prominently pointed out. The Magistrate thought that four of the persons in the parade were approximately of the same height as the appellant. Those four persons were called and their heights were measured. It was, however, found that none of them had the height of this appellant. One was one inch shorter and the remaining three were two inches shorter. In the circumstances we cannot exclude the possibility of this appellant having been identified correctly by the four witnesses who identified him because he happened to be the tallest person in the parade. In view of this important omission therefore we think the identification of this appellant by the witnesses who identified him loses almost its entire value and it becomes very doubtful whether this appellant can be held to have taken part in the dacoity simply on the basis of the evidence of identification which has been led against him by the prosecution. 15. While Khushi Ram was unusually tall it appears that the appellant Shri Prasad was unusually short. 15. While Khushi Ram was unusually tall it appears that the appellant Shri Prasad was unusually short. He is said to be of about 18 years of age and when he was admitted into jail. But was kept in the Juvenile Section. But in the parade in which he was put up for identification no steps were taken to see that at least five or more persons of his age and stature were mixed along with him for test identification. In the identification memo no mention was made of the fact that there were other persons in the parade who had the same height as Shri Prasad. In fact it appears that at the time of the parade there were no under-trials of his age and stature in the jail at all. This appellant has been identified at the parade dated the 15th of November 1954 by no less than five persons, viz., Prem Raj, Har Lal, Jhamman, Boocha and Gabdi. In that parade Prem Raj identified three persons without committing any mistake. Har Lal identified two persons correctly. Boocha identified three persons correctly. Gabdi identified one person correctly. All these three persons did not commit any mistake. The identification of the five witnesses appears to be quite good. But in view of the fact that we cannot exclude the possibility of these witnesses having identified this accused because of his short stature and young age there being no one else in the parade of that stature and age, we are not prepared to uphold the finding of the learned Sessions Judge that this appellant took part in the dacoity on the basis of the identification evidence alone. We therefore think that this appellant too should have been given the benefit of doubt. 16. Bhisham appellant was identified in the parade dated the 15th of November 1954, by two witnesses, Prem Raj and Boocha. Prem Raj could not, however, identify this appellant in the Court of Session. The explanation which he put forward for the omission was that he did not have his proper glasses with him. The explanation does not appear to be convincing at all. It is the identification by a witness in the Court of session that is of primary importance and the earliest identification or the test identification can be used only for the purpose of corroboration or contradiction. The explanation does not appear to be convincing at all. It is the identification by a witness in the Court of session that is of primary importance and the earliest identification or the test identification can be used only for the purpose of corroboration or contradiction. If this witness did not identify this appellant in the Court of session, whatever may be the reason for the omission, it is not possible to consider the evidence of this witness against this appellant as admissible simply because he identified him at the test parade or in the committing Court. The identification by this witness must therefore be excluded from consideration. We are therefore left in the case of this appellant with only the single identification of Boocha alone. Moreover, there is sufficient evidence on record to prove that this appellant Bhisham had a vertical deepmark between his eye brows in respect of which the Magistrate, who had conducted the identification parade had not taken any steps for its concealment. It is said that probably at that time the mark was not prominent enough but it is not easy to accept this explanation. It is not suggested that the mark had come into existence or had deepened while the appellant was in jail. There is no evidence on record to show it. The mark must therefore, have been there at the time of the identification parade. If the mark was visible and prominent at the time of the trial as was admitted by more than one witness there appears to have been no justification for the Magistrate omitting to notice it at the test parade. He should have taken steps for concealing this mark. On account of this mark it could not have been difficult for the witnesses to identify this appellant. Keeping this fact into consideration along with the fact that there is only one good identification against this appellant we think that the finding of the Sessions Judge that he participated in the dacoity cannot be upheld. 17. The last appellant whose case is there before us is Hoti son of Jhandi. He has been identified by five witnesses, viz. Prem Raj, Boocha, Har Lal, Kishan Lal and Matoli. 17. The last appellant whose case is there before us is Hoti son of Jhandi. He has been identified by five witnesses, viz. Prem Raj, Boocha, Har Lal, Kishan Lal and Matoli. The learned Session Judge has, however, not placed much reliance on the evidence of Kishan Lal and Matoli but has based the conviction of this appellant Only on the evidence of Prem Raj, Boocha and Har Lal. These three witnesses did not commit any mistake at the parade of the 15th of November 1954 in which they identified this appellant. As these appellants did not commit any mistake at the parade they must be considered to be good witnesses. Three contentions were, however put forward on behalf of this appellant by his learned counsel. They were : 1. That at the time of the test identification he was putting on a kurta with prominent blue stripes and was also putting on a jacket. The other persons in the parade were not putting on such clothes and the appellant could have been identified with the help of the kurta and jacket. 2. That the appellant had certain marks about which no steps were taken at the time of the test identification by the Magistrate who conducted it. 3. That he had been shown to the witnesses. He had been arrested at a short distance from the hospital and had after his arrest been taken to the hospital where the witnesses had an opportunity of seeing him. 18. The appellant may have been putting loll a kurta or jacket of a particular colour but there is nothing to show that these colours were particularly prominent or that the other persons in the parade were not putting on similar clothes. This fact was never brought to the notice of the Magistrate who was getting the identification parade conducted. The usual practice is that accused are put up for identification in the same clothes in which they are arrested. The other sunder trials who are mixed also put on the same clothes with which they are sent to jail. Had the colour of the clothes of this appellant been prominent the Magistrate would have noticed the same and taken some steps for mixing up other persons putting on similar clothes. The other sunder trials who are mixed also put on the same clothes with which they are sent to jail. Had the colour of the clothes of this appellant been prominent the Magistrate would have noticed the same and taken some steps for mixing up other persons putting on similar clothes. We are therefore not prepared to reject the evidence of identification, in respect of this appellant which appears to be otherwise good because he alleges that he was putting on a particular type of clothes at the time of the test identification. 19. So far as marks are concerned the Magistrate who conducted the identification noticed some marks and took steps for concealing them by having paper chits pasted on them. During cross-examination it was pointed to him that this appellant had several other marks and it was suggested that no steps had been taken for concealing them. The learned Magistrate, however, said that these other marks on which great emphasis was being laid were not prominent at all. Some of these marks appear to be temporary ones; for example, pimples or scratches due to itching. The other marks were small scars or wrinkles. There were moles on the neck which were concealed under the clothes. The omission to take particular steps in respect of those marks which were by no means prominent cannot therefore be given any importance. It cannot be said that this appellant has been identified on account of these marks. 20. It is also not possible to accept the contention that this appellant was shown to any of the witnesses at the hospital soon after his arrest. Prem Raj and Har Lal, the two important witnesses who have identified him, deny that they had gone to the hospital or were there on the date on which this appellant was arrested. There is no evidence to prove that they were there on that date. Chiranji Lal (D.W. 3) was examined by this appellant in his defence, but he does not appear to be reliable at all. He belongs to the biradari of the appellant and was also his surety. On the basis of his evidence it cannot be held that this appellant was actually shown to the witnesses as he alleges. 21. Chiranji Lal (D.W. 3) was examined by this appellant in his defence, but he does not appear to be reliable at all. He belongs to the biradari of the appellant and was also his surety. On the basis of his evidence it cannot be held that this appellant was actually shown to the witnesses as he alleges. 21. The evidence of Prem Raj Boocha and Har Lal thus appears to be quite sufficient to prove that this appellant took part in the dacoity. 22. The result is that the appeals of Chhotey Lal and Hoti son of Jhandi must fail. Their conviction under section 396 I.P.C. must be upheld. Their sentences do not call for any interference. They must serve out their sentences. The appeals of the remaining appellants, Bhisham, Khushi Ram and Shri Prasad, are allowed. Their convictions and sentences are set aside. They will be released at once unless they are required in some other connection. If Khushi Ram is on bail he need not surrender. His bail bonds shall s a cancelled.