JUDGMENT H.N. Kapoor, J. - These are two connected appeals arising out of the same judgment dated the 18th of June, 1970 passed by the Temporary Civil and Sessions Judge of Saharanpur convicting the two appellants Hanif and Rampal under section 395 I.P.C. and sentencing them to five years' R.I. each. Both these appeals can conveniently be decided by one common judgment. It may be stated here that three other persons, namely, Shanker, Mohar and Shiamu were tried together under sections 395 and 412 I.P.C. but they were acquitted under those charges. 2. The facts giving rise to these appeals are as follows : A dacoity was committed at the house of Nathu Singh (P.W. 1) in village Pilkhani, Police Station Nakur in the district of Saharanpur on the night between 29th & 30th of April, 1969 at 11.30 p.m. Nathu Singh was sleeping outside the house while his sons Karam Singh (P.W. 3) along with his wife Smt. Kmla (P.W. 7) Sint. Khilli (P.W. 8) wife of Atar Singh, brother of Nathu Singh along with other members of his family were sleeping inside the house. About 11 or 12 dacoits entered the house of Nathu Singh and started committing dacoity and beating them. Smt. Khilli Fotnehow managed to come out and she informed Nathu Singh then raised an alarm hearing which many villagers including Afla (P.W. 9) arrived there. Alla then set fire to a heap of sugarcane leaves lying at the corner of the house of Nathu Singh and Ram Niwaz which emanated sufficient light. The dacoits name out of the house after looting the property. One of the dacoits fired while they were leaving. One Sahib Singh and Afla (P.W. 9) received gun shot injuries. Thereafter the villagers who had collected there attacked the dacoits with their lathis and after causing injuries to them succeeded in apprehending Hanif and Rampal at the spot while the other dacoits made good their escape with the looted property. 3. Nathu Singh then got a written report (Ext. Ka. 1) written by one Jagdish. He gave details of the looted property and left the arrested dacoits at the spot in the custody of the village people. He himself went to the police station and lodged the first information report at 1.30 a. m. on the night between 29th and 30th of April, 1969. Ka. 1) written by one Jagdish. He gave details of the looted property and left the arrested dacoits at the spot in the custody of the village people. He himself went to the police station and lodged the first information report at 1.30 a. m. on the night between 29th and 30th of April, 1969. The case was registered in the general diary (Ext. Ka. 10). S.I. Matadin (P.W. 11) took up the investigation of the case and at once proceeded at the spot along with the police officials. He took Hanif and Rampal accused in custody and interrogated them. He also interrogated the injured and the other persons. The injured persons were then sent for medical examination. He prepared the site plan (Ext. Ka. 14). He found the ash burnt and took its sample in his possession. He also found the fired cartridges and tiklies which he took in his possession. He then went in search of the other accused persons. He arrested Mohara along with some looted property. He arrested Shiamu from his village along with some property said to be looted. Lastly he arrested Shanker from his house. These three persons were taken to the police station balbardah. In this case we are not concerned with the evidence of test identification. 4. The injuries of Sahib Singh, Afla (P.W. 9) and Smt. Khilli (P.W. 8) were examined by Dr. R. K. Saxeoa (P.W. 5) on 30th April 1969. Gun-shot wounds were found on the person of Sahib Singh, abrasions on the person of Afla and contusions on the person of Suit. Khilli Dr. Brahma Gopal Mathur (P.W. 4) extrected pellets from the wounds of Sahib Singh on May 3, 1969. The pellets were embedded very deep in the wounds of Afla and so they could not be taken out. After completing the investigation, the investigating officer submitted a charge sheet against all the accused persons on 12th June 1969. The accused were duly tried. 5. Both the appellants denied that they had taken part in the dacoity or that they were arrested from the place as alleged by the prosecution. Hanif stated that he was a married in village Ran deva and he was on inimical terms with the goojars of that village. They are related to Nathu Singh (P.W. 1) and they got him falsely implicated in this case through Nathu Singh. Hanif stated that he was a married in village Ran deva and he was on inimical terms with the goojars of that village. They are related to Nathu Singh (P.W. 1) and they got him falsely implicated in this case through Nathu Singh. He stated that he was arrested from village Ran- deva. Rampal stated that he was arrested by the police on that night from his house and was falsely implicated in this case. The defence witness Siddiq constable was examined on their behalf. He has proved the G. D. entry Ext. Kha-6 which was prepared the time the first information report was lodged. This entry was made at the time when the two appellants Hanif and Rampal were admitted to the hawalat. 6. In the present case the factum of dacoity has not been challenged. It has been fully proved by the circumstantial evidence in the form of gun-shot injuries on the person of Sahib Singh and Afla and contusion on the person of Smt. Khilli. This circumstance corroborates the oral evidence. The investigating officer also recovered two fired cartridges from the place of occurrence. There can thus be no doubt about the dacoity having been committed at the house of Nathu Singh on the night between 29th and 30th of April, 1969. The eye witnesses of the occurrence are Nathu Singh (P.W. 1), Karam Singh (P.W. 3), Smt. Kamla (P.W. 7), Smt. Khilli (P.W. 8) and Afla (P.W. 9). Four of them are the members of the same family while Afla is an outside who had received injuries. Learned counsel for the appellants has challenged their evidence on the ground that it was importable that they were able to arrest two of the accused persons when their companions were armed with fire arms and were firing at them and that there was no fire-arm on the side of the villagers. The evidence has also been challenged on the ground that on behalf of both the appellants applications were moved at the earliest stage challenging the fact that they were arrested by the villagers in the manner stated by the prosecution and both of them had claim- ed test identification but that request was opposed on behalf of the prosecution and the court, therefore, did not grant their prayer. It was argued that in case the evidence of test identification was available, that could have corroborated the oral evidence of the witnesses in case the accused persons had actually been arrested on the spot. It was also pointed out that the evidence of these witnesses is that they had apprehended both the appellants after beating them with la this But in the G. D. entry Ext. Kha-6 it is stated that no fresh injuries were found on their persons. It was argued that in the case they had injuries on their person, investigating agency interested in suppressing those injuries. It is true that even in the first information report there is a mention that lathis were wielded on the side of the villagers and then Hanif and Rampal accused could be arrested. It is not understood as to why no mention about these injuries was made in the general diary. The lower court has observed that the injuries were more than six hours old and as such they must not have looked like fresh injuries and so in the general diary it was mentioned that no fresh injuries were found. I am not satisfied with this reasoning. Obviously nothing of the injuries has been deliberately suppressed. The other possibility may be that they might have had no injuries. 7. The most important circumstance against the prosecution is that it had opposed conducting test identification of the two appellants on the applications made on their behalf. Even after the charge-sheet had been submitted, it was possible to conduct the test identification after obtaining the order of the court. An adverse inference can certainly be drawn against the prosecution for not holding the test identification when it was claimed on behalf of the appellants who had challenged their being arrested in the manner as stated by the prosecution. Their Lordships of the Supreme Court have held in the case of Jaduraj Singh v. State of U.P., (1971) C.A.R. 10 at p. 17 para 18 that an adverse inference can be drawn against the prosecution if the investigating agency refused to hold test identification inspite of a definite prayer made by the accused. No doubt that was not the case of spot arrest but that principle can apply to the case o( spot arrest also. No doubt that was not the case of spot arrest but that principle can apply to the case o( spot arrest also. A Bench of this Court has observed in the case of State of U.P. v. Neelkanth, AIR (1967) All. page 447 that even in the case of spot arrest under suitable circumstances the court may grant permission for holding a test identification. Learned Assistant Govt. Advocate has placed reliance on the case of Alijan Imam Ali v. State of U.P., (1968) C.L.J. 9 in which it was observed that although it raises doubt when the test identification is not held though claimed by the accused but it by itself is not sufficient to challenge the veracity of the witnesses. That Bench observed that the totality of the circumstances have to be taken into consideration. In the present case, it is very material circumstances that no injury was noted in the general diary. That circumstance alone arose out of the testimony of the eye-witnesses. Their testimony becomes much more doubtful because of the reluctance of the prosecution it hold a test identification in spite of a definite prayer of the appellants. It was also argued by learned counsel for the appellants that the investigation in this case has not been fair and the three other accused persons were acquitted because of the defective investigation. The case of each accused has to be considered separately. 8. After considering the entire evidence on the record and the circumstances of the case, I am not satisfied that the prosecution has succeeded in proving its case against the appellants beyond all reasonable doubts. 9. In the result the appeals are allowed and the conviction and the sentences of the appellants are set aside. The appellants are no bail They need not surrender to their bail bonds which are hereby discharged.