ORDER Mahesh Chandra, J. - These are two Cr. Appeals Nos. 2684 of 1964 and 126 of 1965 arising out of the same judgment. Cr. appeal No. 2684 has been filed by Shiv Ram and Jail appeal No. 126 of 1965 by Babu Khan. Both the Appellants have been convicted u/s 395 IPC sentenced to undergo rigorous imprisonment for a period of seven years. 2. The prosecution case may be stated briefly. At about mid-night between June 3rd and 4th, 1964, 13 or 14 armed persons including the Appellants raided Ram Gopal's house in Nagla Maha Singh, a village of district Agra. Ram Gopal and his father Shyam Lal were sleeping in their Nohra at a distance of about 25 steps from their residential house. Ram Gopal's wife Smt. Bhagwati his grand-mother Smt. Parwati and Bhabhi Smt. Shakuntala were sleeping in the courtyard of the residential house with the main gate locked from inside. A lighted lantern was hanging from a wall in the court-yard. Two gangsters remained near the villagers sleeping on the Chabutra to force them to stay quietly in their beds. Nine of the gangsters scaled the wall of the adjoining house of Ramjilal. Three of them stayed on the complainant's roof and the rest jumped into the complainant's court-yard. The dacoits beat the ladies and forcibly snatched ornaments of their persons and also forced them to disclose the valuables in their house. They even burnt the trousers of an infant daughter of Ram Gopal and looted cash and ornaments worth Rs. 13,000/- from the house. The ladies raised an alarm, which brought Debi Ram Gadaria and other villagers. Debi Ram informed Ram Gopal and Shyam Lal also. Ram Gopal, Shyam Lal and Prabhu and a few other villagers then stood in the lane outside Mahendra's house in the west and others assembled in front of Jyoti Pradhan's house. One of them viz. Jagannath even fired shots with his gun. The villagers saw the faces of the miscreants in the light of torches. The dacoits threatened to shoot the person, who dared approach them. They then broke open the main door of the looted house, came out into the lane, counted their companions and went away from the house with the booty. Some of them went towards the east and the others to the west. The dacoits threatened to shoot the person, who dared approach them. They then broke open the main door of the looted house, came out into the lane, counted their companions and went away from the house with the booty. Some of them went towards the east and the others to the west. A written F.I.R. (Ex Ka 1) scribed by Prabhu Dayal was lodged at 7.15 p.m. the next day at Police station Barhan. Shiv Ram and Babu Khan Appellants were arrested from Sarain Noor Mohal village on 16-4-1964 by Sub-Inspector Raghubir Singh (PW 7). After test identification they were charge-sheeted. 3. Both of them pleaded not guilty and alleged that they had been falsely implicated out of enmity. They also stated that they had been shown to the witnesses at Etmadpur Police station. No witness was examined in defence. 4. Out of the ten prosecution witnesses, Ram Gopal, Smt. Bhagwati and Shyam Lal (PWs 1 to 3) are eye witnesses of the dacoity and also witnesses of identification. The test identification was conducted by Sri V.P. Gupta Magistrate 1st Glass. Constable Kunwar Pal Singh, Lal Kishan and Surendra Singh (PWs 8 to 10) and SI Raghubir Singh deposed about the arrest, escort and detention of the accused Appellants. There is no doubt that the dacoity was committed at the house of Ram Gopal as stated by PWs 1 to 3. It is also clear from their evidence that there was a lighted lantern inside the courtyard and torches with the villagers and the dacoits. 5. The proof of participation of the Appellant in the dacoity however, rests on identification evidence and that in its turn on the question whether the Appellants have been proved to ha been kept Baparda from the time their arrest till identification. 6. Shiv Ram has been correctly identified by Ram Gopal (PW 1) and Smt. Bhagwati (PW 2) and Babu Khan by these two witnesses and Shyam Lal (PW 3). They committed no mistakes. 7. 6. Shiv Ram has been correctly identified by Ram Gopal (PW 1) and Smt. Bhagwati (PW 2) and Babu Khan by these two witnesses and Shyam Lal (PW 3). They committed no mistakes. 7. The contention of the learned Counsel for the Appellants however, is that it is clear from the statement of Ram Gopal himself before the identification magistrate that he knew Shiv Ram and Babu Khan Appellants before the test identification and that the Appellants were as alleged by them shown to the prosecution witnesses at Etmadpur Police Station and were not kept Baparda until they were escorted from the Kotwali to the Collectorate. 8. On behalf of the State it is pointed out that according to the statement of PWs. 7 to 10, the Appellants were kept Baparda throughout. Lal Kishan (PW 9) however, states that he took the Appellants out of the Etmadpur Police station at about 12.30 p.m. baparda to Etmadpur bus station where he boarded the bus at about 3.30 p.m. and reached Agra Collectorate at about 4.30 p.m., that SDM Etmadpur was not available and all the other Magistrates refused to prepare and sign the jail warrant and that he consequently escorted both the Appellants back to Agra Kotwali, where he reached after 6 p.m. In the first place it is inconceivable that if the SDM was not available in the Collectorate at 4.30 p.m. the other magistrate, who must have been there at that time, refused to sign the jail warrant. It is not necessary that the jail warrant should be signed only by the SDM. Secondly, even the time at which the constable alleges that he reached Agra Collectorate with the Appellants appears to have been purposely prolonged to a late hour. Etmadpur is not so far away from the Agra Collectorate as to have taken the constable and the Appellants four hours to reach there. Nor is it credible that the constable and the Appellants would have waited from 12.30 p.m. to 3.30 p.m. at Etmadpur Bus station to leave for the Agra, Collectorate. The contention on Behalf of the Appellants is that actually the Appellants were shown at the Etmadpur Police station and that the departure was delayed not because of non-availability of a seat in a bus but became time had been taken at Police station Etmadpur to show the Appellants to the witnesses. The contention on Behalf of the Appellants is that actually the Appellants were shown at the Etmadpur Police station and that the departure was delayed not because of non-availability of a seat in a bus but became time had been taken at Police station Etmadpur to show the Appellants to the witnesses. This contention cannot be said to be without force, when, we find that according to Lal Kishan constable it had taken him four hours to reach the Agra Collectorate from Etmadpur and even then he had to take the pretext that all the Magistrates other than the SDM Etmadpur, who was absent had refused to sign the jail warrant. It is not unlikely that the constable reached the Collectorate even later than 4.30 p.m. 9. Moreover, there is nothing to prove that the Appellants had been kept Baparda after arrival at the Kotwali from the Collectorate on 16-6-1964 at 6.10 p.m. The only witness examined for the period after the arrival of the Appellants at the Kotwali on 16-6-1964 was Surendra Singh constable (PW 10), but he had to admit when cross-examined that he was on duty from 10 p.m. to 10 a.m. Consequently he was not on duty from 6.10 p.m. to 10 p.m. and could not state whether the Appellants were kept Baparda during that period. Ex. Ka 16 the General Diary also does not relate to the period between 6.10 p.m. and 10 p.m. All these factors cast a strong doubt on the prosecution story that the Appellants were kept Baparda from the time of 'arrest till the test identification in Jail and were not shown to anybody.' The probability of identification of the Appellants by the prosecution witnesses, because they had an opportunity to see them between the Appellants' arrest and their admission into the jail, cannot, therefore, be ruled out. It is not necessary or possible for the accused to prove T affirmatively that he was actually shown to the prosecution witnesses. It would/ be enough if he points out the circumstances which throw a doubt on the fairness of identification proceedings and of his being kept Baparda from the time of arrest till his admission into the jail. This view was also taken by a Division Bench of this Court in Cr. Appeals Nos. 697, 694 and 695 of 1962 decided on 16-8-1962 by Jagdish Sahai and Asthana, JJ. 10. This view was also taken by a Division Bench of this Court in Cr. Appeals Nos. 697, 694 and 695 of 1962 decided on 16-8-1962 by Jagdish Sahai and Asthana, JJ. 10. In these circumstances it would not be safe to convict the Appellants only on the basis of identification evidence. The result is that both the Cr. Appeals Nos. 2684 of 1964 and 126 of 1965 are allowed. The conviction and sentence of both the Appellants are set aside and both of them viz. Shiv Ram and Babu Khan are acquitted. They are in jail. They shall be released forthwith if not required for any other offence. This judgment shall govern both Cr. Appeals Nos. 2684 of 1964 and 126 of 1965.