JUDGMENT M. H. Beg, J. - The Appellant was prosecuted for alleged participation in an armed dacoity committed at the house of a man called Sukhai (P.W. 1) in Nagla Mansingh police station Kotwali in the district of Mainpuri. He was convicted and sentenced to ten years R.I. by the court of Sessions Judge of Farrukhabad Mainpuri at Mainpuri. The dacoits were said to have been armed with guns, pistols, lathis, and Dandas. A number of villagers gathered at the scene of occurrence in response to the cries of the victims. Among these, Mewa Ram (P.W. 3) and Kunwarpal Singh (P.W. 2) are alleged to have brought their torches and some Tori leaves were said to have been lit which produced a considerable light so that the dacoits were seen while committing dacoity. In the F.I.R. lodged on May 24, 1963 at 3.30 a.m. at P.S. Kotwali, four miles from the place of occurrence, a description of the dacoits was given. Some were said to have been wearing Dhotis and shirts and others shorts. Their heights are also mentioned as tall as well as short. It was also mentioned that some of the dacoits had had their hair cuts in the western style. The details of the activities of the dacoits were also given in the F.I.R. The dacoits are said to have started firing their guns after having been surrounded and pressed by the villagers. Three persons, namely Kunwarpal (P.W. 2) and Sia Ram and Lala Ram, were shown to have been injured. It was mentioned that the dacoits came out of the door when they became alarmed at the activities of the villagers who had surrounded the house. Apparently, the account given in the F.I.R. was meant to convey that the dacoits came and stood outside in a Maidan because it is stated there that one of the dacoits counted the number after they had come out into the Maidan from the door and then they moved towards the river Jamuna. It was alleged that the dacoits remained inside the house of Sukkhi for nearly half an hour and were chased until one of the dacoits was actually caught and the others ran away. It was also alleged that the faces of the dacoits who ran away were seen well and that the name of the dacoit who was captured was Majnu. It was also alleged that the faces of the dacoits who ran away were seen well and that the name of the dacoit who was captured was Majnu. A list of looted property was also given in the F.I.R. 2. It appears that the police got the names of the other participants in the dacoity from Majnu, the dacoit who had been captured. Nevertheless, the prosecution of the various dacoits, all of whose names are said to have been mentioned by Majnu, took place at various times. It was proved that there was a previous Sessions Trial in which Chhabbasi, the brother of the appellant Harpal, was tried and it had resulted in the acquittal of Chhabbasi on February 13, 1964. The appellant was arrested on December 8, 1963, and put up for a test identification parade held at the district Jail on December 12, 1963. He was identified correctly by five out of seven identifying witnesses who made no mistake whatsoever. The appellant was convicted on April 18, 1964, on the evidence of these five identifying witnesses who also identified the appellant correctly at the trial. The identifying witnesses seem to have had no difficulty whatsoever in picking out the appellant. The appellant stated that he had been shown to the witnesses at the police station Kotwali in Mainpuri before having been sent to jail. 3. Unfortunately, the appellant was undefended at the trial so that there is no cross examination of the identifying witnesses inspite of the fact that the appellant is shown to be 15 years old on March 28, 1964 at the time of the trial 1 when he gave his statement under Section 342 Cr.P.C. This means that he must have been just above 14 years of age when the dacoity took place. He must have grown to some extent by December, 1963, when he was put up for identification at a test parade at which the appellant is shown to have been mixed with ten under trials of his own choice. It was not mentioned in the memorandum of identification proceedings that Sri Ram Sahai Kulshreshta, the Magistrate who conducted the identification proceedings, had taken any steps to ensure that the ten under trials who were mixed in the parade were approximately of the same age and of similar appearance. It was not mentioned in the memorandum of identification proceedings that Sri Ram Sahai Kulshreshta, the Magistrate who conducted the identification proceedings, had taken any steps to ensure that the ten under trials who were mixed in the parade were approximately of the same age and of similar appearance. At the trial the Magistrate stated, no doubt, that the under trials mixed in the parade resembled the appellant. The Magistrate was not cross-examined at all as the appellant was unrepresented. The uncross-examined statements of the five identifying witnesses are also extremely brief. They consist of a few lines showing that they had been some dacoits when they went near the house of Sukkhi. They do not say what the persons described as dacoits were actually doing except that some of them had fired shots and that one of the dacoits had counted the others at the door of the house and that the appellant was seen among dacoits and had been identified at the test parade in the jail. The trial court also did not put any question to the witnesses although the accused was unrepresented. 4. The defence of the appellant, apart from the allegation that he was shown to the witnesses at the thana, was that there was "ranjish" due to which he was prosecuted. At the trial he stated that he had a dispute with the police constable Munna Singh, who is a neighbour of the appellant. He also stated that he was going to meet his brother Chhab-basi, who had filed a complaint against the police when he was caught hold of by Munna Singh constable and taken into the Kotwali. His defence witness, Sita Ram (D.W. 1) stated that a case relating to the same dacoity against Chhabbasi, the appellants brother, and other persons had been started and that the accused had been acquitted in that case and that Chhabbasi had filed a complaint against two police constables. Towards the end of the trial of the appellant, some counsel seems to have been engaged so that the last witness B.B. Pandey (P.W. 11), the Investigating Officer was actually cross-examined about the alleged hostility of the police towards the appellant. He denied that the appellant was being prosecuted at the suggestion of some body. Towards the end of the trial of the appellant, some counsel seems to have been engaged so that the last witness B.B. Pandey (P.W. 11), the Investigating Officer was actually cross-examined about the alleged hostility of the police towards the appellant. He denied that the appellant was being prosecuted at the suggestion of some body. He tried to explain the fact that the appellant was arrested so late by stating that he could not be found at his house whenever the Investigating Officer tried to find him, but no attempt was made to prove any proceedings, under Sections 87 or 88, Criminal Procedure Code, against the appellant. 5. The first contention that has been put forward on behalf of the appellant by Mr. R. Pandey is that the appellant did not have a fair trial and was prejudiced due to the fact that he did not have the benefit of a counsel to defend him at the trial. It was contended that if a counsel had been there to defend him, questions could be put at to why a person whose appearance must be outstanding due to his extreme youth was not described in the F.I.R. or during investigation when descriptions are given of dacoits seen. It is also pointed out that if a counsel had been there to cross-examine the identifying witnesses, it could have been proved that the witnesses had not seen the appellant committing any particular act, so that it could be said that the impression made by the appellant during the course of the dacoity might have become fixed upon the minds of the witnesses who professed to have correctly identified that appellant. After all, evidence as to identity based on personal impressions verges on opinion evidence of witnesses who compare the person they see at the test parade with the person seen during an occurrence such as the dacoity in the present case. The process by which identification takes place is necessarily that of comparison of images which are present only in the minds of the identifying witnesses with the images seen at the test parade. The identifying witness has not even got the advantage of comparing the images actually presented by some photograph with what he sees at the test parade. The process by which identification takes place is necessarily that of comparison of images which are present only in the minds of the identifying witnesses with the images seen at the test parade. The identifying witness has not even got the advantage of comparing the images actually presented by some photograph with what he sees at the test parade. Whatever access he has to material for comparison which may be spoken of as equivalent of photographs are his purely recollected images which may have imprinted themselves upon such memory as each witness possesses. There must, therefore, be a searching examination and cross-examination of each identifying witness before his testimonial assertion in court that he had seen the person present in the dock committing dacoity can be accepted safely. 6. It is pointed out that, in the present case, the appellant was not only unable to procure the services of a counsel to defend him due to his poverty, but he was also not shown by such evidence as the witnesses had given, to have been identified for any particular reason. The witnesses had not given any reason whatsoever to justify their assertions based upon their impressions that they had seen the appellant amongst the dacoits. It was pointed out that the test parade had taken place after a lapse of more than six months and that five out of seven witnesses seem to have identified the appellant with great ease. It was contended, not with force, that this indicated that the witnesses had a pretty good picture of the appellant in their minds. If this is what transpires from an examination of the test proceedings, as it does, there should be a reason why the witnesses were able to identify the appellant so easily after such a lapse of time. That reason, it is argued, could be either that the appellant had been shown to the witnesses at the Kotwali or that the appellant had been seen in the course of the dacoity. It was contended that, out of the two equally possible inferences, the inference which benefits an accused person must be preferred to an interference which leans in favour of the prosecution. I do not think that the matter can be put so simply. If the prosecution evidence is to be believed, the appellant was not seen by the witnesses anywhere between the dacoity and the test parade. I do not think that the matter can be put so simply. If the prosecution evidence is to be believed, the appellant was not seen by the witnesses anywhere between the dacoity and the test parade. It does however, seem to me to be essential, in cases depending upon evidence as to identify based on personal impressions that the prosecution must prove that the testimonial assertion of a witness who identifies an accused as a participant in an occurrence is supported by sufficient particulars given by that witness before it can be safely held that he has correctly identified an accused person. It is the giving of the particulars which lends assurance to the testimonial assertion as to identity just as the giving of the reasons for an opinion, by an expert does so. The grounds and reasons, given for an opinion justify the acceptance of the opinion of an expert. In the case of an identifying witness, who is not an expert, it is difficult to expect him to give reasons in the same way as an expert gives reasons to justify his opinion. Nevertheless, where these reasons can be given they ought to be provided by a witness if his testimonial assertion as to identify is to be accepted with confidence by a court of justice. In a case where the accused is a young man of about 14, whose appearance must be outstanding unless there were other persons of the same age in the group, I do not see why the witness could not have observed this feature when other features of the dacoits were observed. Even if there were several persons of very youthful appearance amongst the dacoits, this fact could be easily observed and mentioned. I, therefore, think that the absence of a description from the F.I.R. which could fit the appellant is a ground for raising some doubt about the evidence of identity of this appellant in this case, although this feature of the case, by itself, may not be sufficient for an acquittal. 7. The fact that the prosecution has not cared to bring out from the witnesses any particular act which the appellant may have been seen committing in the course of dacoity leaves another defect in the prosecution evidence. 7. The fact that the prosecution has not cared to bring out from the witnesses any particular act which the appellant may have been seen committing in the course of dacoity leaves another defect in the prosecution evidence. Such an infirmity should not be there if the testimonial assertion of the prosecution witnesses as to identity is to safely pass the test of reliability. I do not see why it is not possible for a witness to remember what he saw the particular accused person doing in the course of a dacoity. I find that the memorandum of identification which consists, as we know, of a printed form which has to be filled up, contains a note which is, almost invariably, overlooked by the Magistrate conducting the test parades. I will, therefore, quote the printed note from the memorandum of the test identification proceedings of the appellant before me: "It is very useful to note whether the witness knew the name of the person he had come to identify or he only described him in some such way as the man who was standing at the door at the time of the dacoity. The witness is not to be asked in a general way, identify whomsoever you know." 8. Particularly, in a case in which the test identification proceedings are held after a lapse of several months there ought to be either a description which fits an accused person alleged to have been identified or an assignment of some social reason for fixing his identity well in the mind, such as the fact that the particular accused was seen committing a particular act. It has to be proved that the identity of the particular accused was fixed so well as to enable witnesses to recall his picture after several months have elapsed. 9. I have also noted above, in describing the test proceedings, the fact that the Magistrate conducting the test parade had not mentioned, in the memorandum of the test proceedings, that he had taken the precaution of mixing any under trials of approximately the same age and similar appearance as the appellant. On the other hand, the Magistrate seems to have left it to the choice of the appellant himself to select whoever he wanted to pick. On the other hand, the Magistrate seems to have left it to the choice of the appellant himself to select whoever he wanted to pick. A young lad of 15 could not be expected to understand the object of test proceedings when the learned Magistrate conducting the test parade does not seem to have fully appreciated the principles underlying such test proceedings. I also notice, from the memorandum of the test proceedings drawn up by the learned Magistrate, that he covered up some insignificant marks consisting of moles, one of which is on the left ear and another on the left cheek. I have already expressed the opinion, in other cases, that such insignificant marks ought not to be concealed merely to meet the erroneous objection based upon the mere suspicion that the prosecuting agency will be dishonest. The courts are entitled to assume honesty and integrity and efficiency on the part of the investigating authorities. It may be useful to quote here the precautions prescribed in Wigmores "Principles of Judicial Proof" in dealing with the evidence as to identity and its collection during investigation. He observed: "Caution and precaution in dealing with testimony to identity-(1) It calls for caution, in that testimonial assertions to identity must be accepted only after the most careful consideration. On the one hand, the process of recognition being often more or less sub-conscious, it may be quite correct, even though no specification of marks can be given as reasons for recognition. On the other hand, the risk of injustice being so serious, the great possibilities of lurking error should cause hesitation, and the investigator should seek to establish as many marks as possible that may serve circumstantially to check the testimonial assertions. At this point there may be a logical value in numbers of witnesses. (2) The process also calls for precaution, in taking measures beforehand objectively to reduce the chances of testimonial error: (i) At the time of original observation, the investigator (police) should obtain from the observer a note of any marks of the personality observed, so that there will be less need to depend later on the observers memory. (2) The process also calls for precaution, in taking measures beforehand objectively to reduce the chances of testimonial error: (i) At the time of original observation, the investigator (police) should obtain from the observer a note of any marks of the personality observed, so that there will be less need to depend later on the observers memory. (ii) At the time of presenting for recognition, whether upon arrest or at trial in the court room measures should be taken to increase the stimulus of association and to decrease the risk of false suggestion, (a) The person to be identified should be clothed and placed (so far as feasible) in the same conditions as when originally observed, (b) The person to be identified should be presented in company with a dozen others of not too dissimilar personalities." 10. Lastly, I may observe that although the rule which provides for legal assistance to persons accused of criminal offences appears to be followed only where the accused stands in jeopardy of capital punishment, yet, the power is vested in courts of appointing counsel in other cases where courts are satisfied that the means of the accused do not permit him to engage a counsel. The rule at present stands as follows :- "37. In any ease which comes before a court of sessions, the court may engage counsel to defend the accused person if- (a) the charge against him is such that a capital sentence is possible, and (b) it appears that he has not engaged counsel and is not possessed of sufficient means to do so. To enable the Sessions Court to arrive at a decision as regards the second condition in the preceding paragraph, the committing magistrate, shall in such cases make enquiries from the accused at the time of commitment and after making such other enquiries as may be necessary, report within a month of the commitment order to the court to which the commitment is made whether the accused is possessed of sufficient means to engage counsel. Each case must be decided on its merits and no hard and fast rule as to insufficiency of means should be applied. The Sessions Court in making its decision shall not be bound by the report of the committing Magistrate. Each case must be decided on its merits and no hard and fast rule as to insufficiency of means should be applied. The Sessions Court in making its decision shall not be bound by the report of the committing Magistrate. Counsel appointed under this rule shall be furnished with the necessary papers free of cost and allowed sufficient time to prepare for the defence." 11. I may observe that I find it difficult to understand how justice can be dispensed satisfactorily to persons accused of criminal offences unless they are properly defended. The proper defence of the accused is necessary for the assistance of the trial court in discharging its functions. In my opinion, the rule quoted above indicates that it is always necessary for the trial court to make an enquiry into the reasons why an accused person is not defended by a counsel before the court proceeds to try him without the aid of a counsel. This is particularly necessary in those cases where there are serious charges such as the one fob dacoity. In the present case, I do not find anything upon the record to indicate that there was any enquiry about this matter. In cases where the trial court is unable to get the assistance of a defence counsel, it ought to take special care to see that the interests of the accused do not suffer from the fact that he has no counsel to defend him. Therefore, in such cases, the trial court ought to put questions to witnesses which will enable it to test their reliability. In the present case as I have already pointed out above, the evidence of identifying witnesses was extremely meagre and devoid of particulars. I, therefore, think that the trial court should have tried to elicit from the witnesses such particulars, if possible, as could enable it to accept their testimonial assertions as to the appellants identity as a participant in the dacoity in question with confidence. The trial court did not, however, adopt this course. 12. The net result of all the facts and circumstances discussed above, viewed as a whole, is that I am unable to hold that the bare testimonial assertions of the identifying witnesses, without sufficient particulars, can be safely accepted in the particular case before me. I, therefore, hold that the case against the appellant is not free from doubt. 13. 12. The net result of all the facts and circumstances discussed above, viewed as a whole, is that I am unable to hold that the bare testimonial assertions of the identifying witnesses, without sufficient particulars, can be safely accepted in the particular case before me. I, therefore, hold that the case against the appellant is not free from doubt. 13. In the result, I allow this appeal and set aside the conviction and sentence of the appellant who is in jail. He will be released forthwith unless wanted in some other connection.