JUDGEMENT Panda, J. :- This is an appeal filed by the State of Orissa against an order of acquittal passed by the Additional Sessions Judge, Puri in Sessions Trial No.3/4 of 1973 dated 18-4-1972 wherein the ten respondents were facing trial on charges under Sections 120-B and 396. Indian Penal Code on the allegations of having committed a dacoity with murder in consequence of a conspiracy in the house of one Narayan Khatei on the night of 6/7th November, 1970. The respondents belong to different places except Subala Naik (R.5) and Raula Naik (R.6) who are two brothers belonging to village Golagola and Benudhar (R.8) and Bhima Paikray (R.10) who are co-villagers of Manikgoda, Kartika Padhi (R.2), belongs to village Samagara of which the informant Narayan Khatei (P.W.14) is a resident. However, all belong to the district of Puri. 2. The prosecution case is that on the night of 6-11-1970. Narayan Khatei slept in his room with his Sambandhi (son's father-in-law) Balabhadra Padhan (P.W.9) who had visited their house. His wife and his elder daughter-in-law slept in the bed room of his elder son. His younger son Purnachandra slept in his room with his wife (P.W.10) and a minor child. After midnight, they heard sound of crackers in the courtyard. Both Narayan and Balabhadra (P.W.9) woke up and attempted to come out of the bedroom; but they found it to have been strongly tied from outside. Failing to come out of the room, they shouted for help. Through the gap between the door leaves they found about 8 to 10 dacoits moving about the house. As they raised alarm, the dacoits burst some more crackers in the courtyard which emitted much smoke. The dacoits were also flashing torch lights as they were moving about and were armed with lathis and guns. Some of them broke open the door of tile bed-room of Purnachandra (killed); dragged his wife (P.W.10) outside and kept watch on her. They threatened her to give out where the valuables were. Someone gave out that they had returned disappointed on a previous occasion and this time they would not go without the treasure and unless that is given, they will kill the family members. They entered into the bed-room of Purnachandra and carried away the valuables kept in a trove (Sinduka). They threatened her to give out where the valuables were. Someone gave out that they had returned disappointed on a previous occasion and this time they would not go without the treasure and unless that is given, they will kill the family members. They entered into the bed-room of Purnachandra and carried away the valuables kept in a trove (Sinduka). The dacoits were variously dressed some with full-pants, some with half-pants and shirts and some of them had pugrees on. After the dacoits left the house with the booty, Narayan Khateri (P.W.14) and Balabhadra (P.W.9) and his elder son ventured to come out of the rooms. To their great horror they found the servant - Balunki Bhoi, who was sleeping in the passage room, lying dead in a pool of blood. As they entered the bed-room of the younger son Purna, he was similarly found dead severely bleeding from the mouth. Soon after some of the neighbours came to keen track of the dacoits. Going some way, they felt it unsafe to proceed further and hence returned. Narayan, his wife and the second daughter-in-law were greatly shocked to find Purnachandra and Balunki killed. Narayan early morning sent his Sambandhi Balabhadra to the Police Station to lodge information about the incident. The Sub-Inspector of Police Sadar P.S., Puri (P.W.20) heard the story, made a Station Diary entry and proceeded to village Samangara immediately. Reaching the spot, he took down a plain paper F.I.R (Ex.13) from Narayan and commenced investigation. He held inquest and sent the dead bodies for post-mortem examination. He seized some exploded crackers, blood-stained earth, the broken door and prepared a spot map (Ex.21). On different dates he seized different articles said to have been stolen from the house of the informant and seized them under different seizure lists. He arranged a test identification parade of the suspects as well as of the stolen articles. Finally he submitted charge-sheet against the ten respondents under Sections 120-B and 396 of the Indian Penal Code as aforesaid. After the first charge-sheet and before committal inquiry commenced, respondent Benudhar Padhan (R.8) made a confessional statement (Ex.31) before the Magistrate (P.W.22). 3. The defence was a bald denial of their complicity in the crime. Respondent Benu (R.8) who made a clean confessional statement involving other respondents retracted from the same during trial. 4. The prosecution examined 23 witnesses and the defence one. 3. The defence was a bald denial of their complicity in the crime. Respondent Benu (R.8) who made a clean confessional statement involving other respondents retracted from the same during trial. 4. The prosecution examined 23 witnesses and the defence one. The eye-witnesses to the occurrence are P.Ws.9, 10 and 14 the inmates, of the house, i.e. Sambandhi-Balabhadra; widowed second daughter-in-law Sulochana; and the informant Narayan Khatei respectively. P.Ws.2, 3, 4, 12, 13, 15 and 16 are witnesses to the different seizures who turned hostile and did not support the prosecution case. P.W.18 is the Revenue Officer who held the T.I. parade over suspects Subal Naik and Raula Naik on 1-12-1970 at 3 p.m. inside the Puri jail. P.W.19 is the Sub-Inspector of Police, Jatni who seized the gun of Jayakrushna Parida on receipt of a requisition from the Officer-in-charge of Sadar P.S., Puri on 23-5-1971. P.W.20 is the Officer-in-charge of Nayagarh P.S. who at the date of occurrence was Officer-in-charge of Sadar P.S., Puri and investigated into the case. P.W.21 is the Assistant District Medical Officer, Puri who conducted post-mortem examination over the dead bodies. P.W.22 is the Magistrate, 1st Class. Nayagarh who recorded the confessional statement of respondent Benu. P.W.23 is the S.D.O., Magistrate, First Class, Puri who held a T.I. parade over certain stolen articles in this case. 5. The sole witness for the defence is the Officer-in-charge of Khurda P.S. who deposed that on 20-11-1970 he had requisitioned the car bearing registration No. ORJ 2616 belonging to Sailendra Kumar Padhan (R.3) and carried one Ullas Harichandan of Narangada who had certain bleeding injuries putting him in the back seat. Obviously this was to explain the blood marks found in the mat of the car said to have been utilised for the commission of the dacoity. 6. P.Ws.1, 6, 7, 8, 11 and 17 are some immaterial link witnesses. P.W.1 is Bhikari Charan Sathua, a goldsmith from whose house a gold piece (M.O.I) was recovered and seized. P.W.6 is Managovinda Biswal a witness to the seizure of the car bearing registration No. ORJ 2616 belonging to respondent Sailendra Kumar Padhan, P.W.7 is one who stated to have seen 8 to 10 persons hastily going to Malatipatpur Railway Station from village Samagara. P.W.8 is alleged to have purchased some silver from respondent Sailendra Padhan soon after the occurrence. P.W.6 is Managovinda Biswal a witness to the seizure of the car bearing registration No. ORJ 2616 belonging to respondent Sailendra Kumar Padhan, P.W.7 is one who stated to have seen 8 to 10 persons hastily going to Malatipatpur Railway Station from village Samagara. P.W.8 is alleged to have purchased some silver from respondent Sailendra Padhan soon after the occurrence. P.W.11 is a salesman of a petrol Tanki (depot) at Khandagiri Chhak wherefrom the petrol is said to have been purchased on the night of 7-11-1970 for a vehicle bearing No. ORJ 2616 and proves the counterfoil of the receipt Ex.8. P.W.17 is a witness to the seizure of some articles from the house of Harihar Das deposed to in a half-hearted manner. 7. The evidence in this case can be categorized, into four groups: (i) the eye-witnesses P.Ws.9, 10 and 14; (ii) the confessional statement of respondent Benu (Ex.31); (iii) identification of different suspects by P.Ws.9, 10 and 14 and (iv) identification of certain stolen articles seized from the houses of different respondents. 8. The learned Additional Sessions Judge acquitted the accused persons on the finding that neither of the charges was proved. He discarded the evidence of the eye-witnesses on the ground that they could not have identified the culprits in the circumstances in which they were placed. Regarding the confessional statement (Ex.31) he felt that it suffers from serious infirmity and so cannot be relied upon. Regarding the T.I. parade of the suspects and the stolen properties, he held that there were suspicious circumstances for which that evidence cannot be pressed into service. Regarding the different seizures, as already said, most of the witnesses turned hostile and so that evidence was of no avail. 9. It was contended on behalf of the appellant State that there was nothing to disbelieve at least the statement of P.W.10; that there was no justification for discarding the confessional statement (Ex.31) and the evidence regarding the T.I. parade in respect of at least some of the suspects and some of the incriminating articles. It was specifically urged that the evidence at least as against Subal respondent No.5, Raul respondent No.6, Bansi respondent No.7 and Benudhar respondent No.8 and Jayakrishna respondent No.9 is very convincing and as such their acquittal is improper. It was specifically urged that the evidence at least as against Subal respondent No.5, Raul respondent No.6, Bansi respondent No.7 and Benudhar respondent No.8 and Jayakrishna respondent No.9 is very convincing and as such their acquittal is improper. On an assessment of the evidence as a whole and particularly in view of the fact that the bulk of the prosecution witnesses has turned hostile, the learned Additional Government Advocate did not press, and rightly too, the appeal as against all the respondents. Consequently we propose to dispose of the appeal evidence wise in the order indicated above. 10. That there was a dacoity in the house of the informant (P.W.14) on the alleged night goes without saying. As the inmates of the house were very much perturbed Balabhadra (P.W.9) was deputed to give information at the P.S. which is 5 kilometres away. The Officer-in-charge got the information early morning, made a station diary entry and hastened to the spot. There he drew up the plain paper F.I.R. (Ex.13) at 8.45 a.m. as per the version of P.W.14. The broad features of the case are very much there in the F.I.R., the relevant portion of which on translation into English reads thus: "My Sambandhi Bali Padhan of village Samagara had come. So both of us slept in my room. My wife slept with my elder daughter-in-law in her room. My younger son slept in his room with his wife in the upper row. At about 2 to 3 a.m. I heard sounds of crackers bursting in our house. So I got up. My Sambandhi also got up. But as we opened the door, we found that they had been tied on the rings from outside. So we raised an alarm seeking help from others. At this crackers were thrown at our door and the court-yard became full of smoke. The thieves were moving about in the court-yard with flashing of torch-lights. They had lathis and it appeared that they had two guns also, I saw through the gap in between the door leaves that they broke open the door of my younger son, dragged out my younger daughter-in-law to the court-yard and they threatened her saying "Keep quiet, tell us where are the treasures. Another time we have returned disappointed or else we will kill you". She was being threatened like this. Another time we have returned disappointed or else we will kill you". She was being threatened like this. Last Asadha month, there was an attempt of theft in my house. So I had transferred the receptacle (Sinduka) that contained the valuables along with the ornaments pledged with me to the room of my younger son. The thieves somehow had got this information and so uprooting the door they removed the articles. As the thieves were bursting crackers, and as last time when there was theft I had been assaulted, in tear none of us ventured to come out. About 8 to 10 thieves were there. Most of them had put on khaki half pants with shirt and caps on, 2 to 3 had full pants. After they left our house with the articles through the frontyard, my elder son, myself and my Sambandhi came out. We found that the servant Balunki who was sleeping in the passage room was lying in a pool of blood by the door side in the corner. We tried to raise him but as he did not respond we discovered him dead. We were eager about my younger son as to where he had gone. As we entered his bed-room we found him lying bleeding from the mouth, and was not moving. We realised that he was also dead. In the meantime, villagers and neighbours gathered. They pursued upto the village cremation ground. But out of fear did not proceed further. Seeing my son and servant killed, I got very much perplexed and lost my senses. So early morning sent my Sambandhi Ball Padhan to the P.S. to give this information. Seeing my son so killed, his wife and my wife were often losing their senses. So I could not go to the P.S. The thieves entered into my house from the front side by scaling over the thatch with the help of a cart cross-bar (Sagada Danda). They have taken away following ornaments of mine. Description of articles stolen (1) One golden necklace was cut and removed from my daughter-in-law's neck which consisted of 16 pieces of leaf-size gold and four two-anna size gold weighing about 5 tolas (tied in a black thread). (2) Ten necklaces weighing about 5 tolas (pledged). (3) Younger son's golden thread and gold ring weighing one tola. (4) Three necklaces consisting of leaf-size pieces (pledged). (2) Ten necklaces weighing about 5 tolas (pledged). (3) Younger son's golden thread and gold ring weighing one tola. (4) Three necklaces consisting of leaf-size pieces (pledged). (5) Three gold nose-rings meant for females. (6) Fifteen Bida Malas and silver rupee coins of females (pledged). (7) Nine pairs of Khadus (pledged). (8) Younger daughter-in-law's silver khadu, bangles and one pair of pounji. (9) Elder daughter-in-law's Bala, Pahuda and one pair of Bida. (10) Old Queen Victoria coins fifty in number. (11) Three hundred-rupee note and the rest 10-rupee notes totalling Rupees 2,700/- (12) The above articles being locked in two suit-cases were kept in a wooden receptacle (Sinduka) and some other documents and small pieces of articles which do not occur to me now." The informant does not appear to be a literate man and has given his thumb mark. The wav in which the dacoits entered into the house; the process in which they broke open the younger son's bed room; how they had prior intimation as to where the valuables of the house were; some of the main items removed by bursting of crackers and killing persons who could have given some resistance are all in the First Information Report. 11. As would appear from the spot map (Ex.21), the bed rooms arc in two rows separated by a court-yard having a width of only 10 feet, P.Ws.9 and 14 were sleeping in one of the rooms on the southern row, and his younger son and his wife were sleeping in their bed room opposite to it on the northern row, both the rows having four rooms each including kitchen und granary. The distance being only 10 feet, there is nothing improbable for persons on the southern row to see what is happening either in the court-yard or in northern row unless there is pitch darkness. In this case, the evidence is that crackers were being exploded and torches were being flashed by some of the dacoits as well as by P.Ws.9 and 14 from their bed room. They have entered into the house over the northern row thatch putting the cart frame at point 'K'. 12. In this case, the evidence is that crackers were being exploded and torches were being flashed by some of the dacoits as well as by P.Ws.9 and 14 from their bed room. They have entered into the house over the northern row thatch putting the cart frame at point 'K'. 12. Coming to the evidence of the eye-witnesses, the comment on behalf of the respondents was that P.Ws.9, 10 and 14 could not have possibly seen what was happening in the house when they were in a perplexed mood and there was darkness all about. The evidence of P.W.9 is thus: "... ... ... ... My Samudhi and myself woke up and tried to open the door but it was dosed from outside with a piece of rope tied to the rings attached to the door leaves. We pushed the door leaves from inside and there was a gap between the two door leaves. We found 10 to 12 persons inside the courtyard. They had torch lights with them. Two tall persons were standing on the courtyard in front of our door. The other persons were moving here and there. We cried for help inside the room. Some of the persons in the court-yard shouted "Heiti Ei Ghare Achhanti". Some of them thrust a gun and a knife into our room. At that time I shouted by saying "Tejab Ana Dhalideba". After I made hulla I heard the sound of the door opened of the room, where the younger son of my Samudhi was sleeping. At that time those persons in the court-yard rushed into that room. The wife of younger son of my Samudhi was brought to the verandah and she was alt along entreating the Miscreants to take her ornaments and to spare her life, I was shouting but the miscreants were firing crackers. Some cracker was also thrown into our room and it burnt one piece of cloth. It was a dark night. I was focusing torch light outside. The miscreants were also focusing torch lights. Things were carried away from the house of my Samudhi. Entire occurrence took place about one hour. After they left with the booty my son-in-law opened the door of our room and we came out." In cross-examination, his evidence is thus: "The persons whom I saw in the house in the night had worn different dresses and had pagrees. Things were carried away from the house of my Samudhi. Entire occurrence took place about one hour. After they left with the booty my son-in-law opened the door of our room and we came out." In cross-examination, his evidence is thus: "The persons whom I saw in the house in the night had worn different dresses and had pagrees. Their faces were only visible. They had covered their heads with caps or pugrees. Their fore-heads were visible. I had correctly identified Hari Das in the court-yard in the occurrence night. XX XX XX I had not stated before the I.O. that I had identified accused Hari Das in the court-yard in the occurrence night. I have not staled before the I.O. that I could identify any person if I could see him. For the first time before the committing Magistrate I stated that I had identified Hari Das to the court-yard in the occurrence night. I identified Chhaganlal and Benu Padhan before the committing Magistrate. It is not a fact that I had not identified Chhaganlal before the committing Magistrate. I did not identify any accused anywhere before I identified them before the Magistrate. I was called to Jail by the Magistrate to identify the suspects but I could not identify anybody as I was ill then. I was ill and unable to see things properly. About 15 days or 30 days after the occurrence, I was called to jail to identify the accused persons. I fell ill 15 days to 30 days before the identification. About 15 days after the occurrence I fell ill." As it appears from the record he was aged 63 years at the time he deposed in 1972. Attempt has been made by the defence to establish that he had defective vision and so in the circumstances of the case it was not possible for him to have identified any of the culprits. In view of the admission that he fell ill soon after the occurrence, developed defective vision and so could not identify any in the T.I. parade, it would be risky to rely on his evidence and so we leave it out of consideration. Evidence of P.W.14 on the vital point is thus: "We shouted inside the room for help. But none turned up. They were focusing 8 to 10 torch lights into our house. Evidence of P.W.14 on the vital point is thus: "We shouted inside the room for help. But none turned up. They were focusing 8 to 10 torch lights into our house. They broke open the door of the bed room of my son and entered into it. Three persons carried my daughter-in-law from her bed room and made her sit in the court-yard. They threatened her and asked her where I had kept the valuables. Thereafter they decamped with booty. Out of the dacoits I could identify Raula Naik (R.6), Subala Naik (R.5). Benudhar Pradhan (R.8) and Bansi Naik (R.7). (The witness identified the accused persons by their appearance). Accused Raula Naik and Bansi Naik were dragging my daughter-in-law. Subala Naik was pushing my daughter-in-law from back side. Accused Benudhar armed with a gun was following the above 3 accused persons and my daughter-in-law. I could not identify the other accused persons. XX XX XX I identified the suspected persons in the T.I. parade in jail. I also identified some of the accused persons before the committing Magistrate. I identified some stolen property at Sadar P.S. in presence of a Magistrate." The evidence of P.W.10 is very material as she has been detained, kept under watch and under her nose everything happened. Her evidence is- "While I way asleep there was "Dho Dha" sound inside the court-yard of our house. Hearing the sound I woke up. My husband also woke up and shouted "Bhaimane Daudiasa". When no outsider came for help, my husband opened the door of our room. Before he opened the door I forbade him to open it but he told me that his father and brother were already assaulted and he would open the door. Thereafter he opened the door, and came out and saw dacoits in the courtyard. Out of fear he again came inside the room and we both closed the door from inside by pressing the door with our hands. The dacoit tried to force open the door but they failed and at last with the help of a crow-bar broke open the door. I entreated the dacoits to save my life after taking away property. They dragged me outside and made me sit in the court-yard. One watched over me and another thrust the crow-bar into the mouth of my husband and killed him by assaulting him by the crow-bar. I entreated the dacoits to save my life after taking away property. They dragged me outside and made me sit in the court-yard. One watched over me and another thrust the crow-bar into the mouth of my husband and killed him by assaulting him by the crow-bar. The dacoits were flashing torch lights. With the help of that light I could see the incident. Accused Bansi Naik (R.7) was the man who was keeping watch over me in the courtyard (the witness identified Bansi Naik by his appearance). The accused Subal Naik (R.5) is the man who assaulted my husband with the crow-bar (the witness identifies this accused also by his appearance). One of the dacoits had caught hold of my husband when he was assaulted. The accused Raul Naik (R.6) is that man. (The witness identifies the accused by his appearance). There were 10 to 12 dacoits in the courtyard of the house. The man who was watching the threatened me to kill and asked me where my father-in-law had kept the valuables. He also told me that he and his party men had failed in their attempt to carry valuables on the previous occasion in the previous Asarh. I told him that the valuables were kept in the room where my husband and myself were sleeping. The dacoit who had watched me untied the gold necklace from my neck and lock it away. The necklace was weighing about 5 tolas. He also snatched away the Hair of ear rings from my cars. The dacoits had closed the door of the room where my father-in-law was sleeping with a rope. My father-in-law was shouting in-side fhe room. The dacoits carried away three trunks and some other clothings. I had kept my ornaments inside the trunk. I had kept a gold necklace, one gold Ketaki, a pair of gold nose-rings, two gold chains, a gold ring and a gold patra inside the trunk. The gold necklace inside the trunk was weighing 14 annas. There were other silver ornaments in the trunk. Other ornaments belonging to my mother-in-law were also in the trunk. Some cash was also inside the trunk. I identified in a T.I. parade held by the Magistrate at Sadar P.S. my ornaments. I identified the three accused persona in a T.I. parade held in the Jail of Puri. The dacoits were armed with lathi, guns and crow-bar. Other ornaments belonging to my mother-in-law were also in the trunk. Some cash was also inside the trunk. I identified in a T.I. parade held by the Magistrate at Sadar P.S. my ornaments. I identified the three accused persona in a T.I. parade held in the Jail of Puri. The dacoits were armed with lathi, guns and crow-bar. M.O.III is the gold Haradaphalia necklace belonging to me. I had worn it for 4 to 5 years after my marriage. So I am able to identify it, M.O.IV is the gold Sorisia necklace which was worn by my son for B years. M.O.V., the gold chain was used by my husband for many years. M.O.VI is the pair of gold ear-rings. I had used it for several years. M.O.VII is the pair of silver paunji used by me for many years. M.O.VIII is the pair of silver Panasakanta Khadu and M.O.IX is the pair of silver Labanga Khadu. These belong to me. I had used them. The man who was watching me had worn dhoti tightly like a pant and a pagree on his head. The two men who assaulted my husband had similarly worn dhoti and pagree. The other dacoits were standing at different places inside the house and I did not mark whether they had worn pant or dhoti. They were at a distance from me. XX XX XX 4 to 6 torch lights were flashed at the time of occurrence." In cross-examination on behalf of Jayakrishna Parida, (R.9) she stated thus: "The necklace which was taken away from my neck was most valuable of all the necklaces. I had kept the other necklaces in my trunk which were smaller and loss valuable than the necklace which I had worn. Women wear Haradaphalia necklace like M.O.III. I have not counted the number of Haradaphalias in M.O.III. I had got it from my father at the time of my marriage. It was weighing about 1 tola as I heard it from my father. There was no special mark of identification in M.O.III. I do not know which gold-smith had prepared M.O.III. I had seen M.O.III before the occurrence (and) at the time of T.I. parade held at the P.S. The Magistrate had sent a peon to call me M.O.III was mixed with other kind of necklaces in the T.I. parade. All these were kept on a table. I do not know which gold-smith had prepared M.O.III. I had seen M.O.III before the occurrence (and) at the time of T.I. parade held at the P.S. The Magistrate had sent a peon to call me M.O.III was mixed with other kind of necklaces in the T.I. parade. All these were kept on a table. M.O.III was the only Haradaphalia Mala in the T.I. parade. No police officer was present at the T.I. parade. There were two pairs of gold ear-rings including M.O.VI on the table in the parade. I had not counted the number of Ghagudis in each ear-ring. I do not know the weight of the ear-rings M.O.VI. The other pair of gold ear-ring was bigger in size than M.O.VI. All the ornaments were kept on the table and I picked up my ornaments. There is no special mark of identification in M.O.VI. The gold chains meant for male and female are different. Gold chain M.O.V is worn both by male and female of our side. M.O.V was the only gold chain in the T.I. parade. There is no special mark of identification in M.O.V." In cross examination by other accused persons, she stated thus: "I was seated on the verandah in front of my bed room. Our room was dark when we slept. There were light and smoke in the courtyard. They were filing crackers all along. The courtyard was full of smoke. I could not identify dacoits who had entered into other rooms. I cannot give their description. When the dacoits forced open the door they pushed me and my husband backward. When the man dragged me and kept me on the verandah I could identify him. That man was in bare body. The forehead of that man was covered by pagree. That man appeared to have got small moustaches. I was dragged by only one. I do not remember it I have stated before the police that I was dragged by two men. The men who dragged me was thin and pox-pitted (Accused Bansi Naik whom the witness identified to be the man who had dragged her was neither thin nor fat in stature and he is not pox-pitted). It is not a fact that Bansi Naik was not present among the dacoits inside our house on the occurrence day. I caught fear at the sight of the dacoits and their activities. 9. It is not a fact that Bansi Naik was not present among the dacoits inside our house on the occurrence day. I caught fear at the sight of the dacoits and their activities. 9. The two persons who had caught hold of my husband and assaulted him bear similar appearance. Their dresses were looking white in darkness. I cannot give the exact colour of their dresses. 10. I do not remember if I had stated before the police and the committing Magistrate that I was seated in the courtyard. I was able to identify persons from a distance of about 2 or 3 cubits from the place where I was sitting when my husband was lying down he was assaulted by a crow bar. The man who had caught hold of my husband flashed torch light. There was no other kind of light than torch light. The place where my husband was assaulted will be about 3 cubits from the place where I was sitting. 11. The idiot servant was sleeping in the verandah in front of the bed room of my father-in-law. The man who assaulted my husband was in bare body. The other man who had caught hold of my husband had worn a dhoti, a banian and a pugree. The man who had watched me had not entered into my bed room. My husband did not obstruct the dacoits. It is not a fact that I have stated before the police that my husband was obstructing the dacoits when they entered into the bed room. No man with full black pant had attacked my husband. I do not remember if I have stated before police that a man with black full pant and another man with black complexion and short stature focussed torch light on the eyes of my husband and made him fall down. XX XX XX I had not seen before the occurrence the three persons identified by me in Court and in T.I. parade. 8 days alter the occurrence I identified the suspects in the Jail. I did not notice any special mark of identification on the suspects. I along with my father-in-law, his Samudhi and my Jaa had gone to the Jail, to identify the suspects. 8 days alter the occurrence I identified the suspects in the Jail. I did not notice any special mark of identification on the suspects. I along with my father-in-law, his Samudhi and my Jaa had gone to the Jail, to identify the suspects. It is not a fact that the police S.I. had taken me to the Jail to identify the persons and he had shown the photos of the suspects before the T.I. parade. The dresses of the suspects in the Jail were different from their dresses on the occurrence night. The suspects identified by me had worn dhoti, banians and napkin. They were mixed with 15 to 20 persons with similar dress and stature. I picked up one after the other tha three suspects. 12. It is not a fact that I stated before the Magistrate undertaking the T.I. parade of the suspects that accused Raul Naik was watching me. In the Jail except the Magistrate, suspects and myself there were no other persons near the parade. It is not a fact that I have stated before the police that the man who assaulted my husband did so with a piece of iron looking like a plough-share. It is not a fact that I have stated before the police that first the man thrust the piece of iron into the mouth of my husband and thereafter he fell down. XX XX XX It is not a fact that I am falsely identifying the accused persons in the Court under the instruction of the police." It was contended on behalf of the respondents that in the situation in the darkness of the night and in that perplexed mood and particularly more so when tha dacoits were having pugrees on their head it was not possible for P.Ws.10 and 14 to have seen them properly at the time of occurrence so as to be able to identify them after 8 days in the T.I. parade without committing errors. The occurrence as deposed to by the witnesses took about an hour. The dacoits scaled over the roof, tied the door from outside where P.Ws.9 and 14 were sleeping. Then they exploded crackers that produced great sound and emitted smoke. This roused the inmates of the house. P.Ws.9 and 14 raised alarm and attempted to come out. But they could not. To terrify the inmates and the neighbours, more crackers were burst. The dacoits scaled over the roof, tied the door from outside where P.Ws.9 and 14 were sleeping. Then they exploded crackers that produced great sound and emitted smoke. This roused the inmates of the house. P.Ws.9 and 14 raised alarm and attempted to come out. But they could not. To terrify the inmates and the neighbours, more crackers were burst. The dacoits did not make any secret of their purpose. They gave out how on a previous occasion they had returned disappointed and they were determined to take the treasures this time and unless P.W.10 gave out where they were, all the family members would be massacred. It is evident that the dacoits had got prior intimation that the Sinduka that contained valuables had been removed from the bed room of Narayan (P.W.14) to the bed room of P.W.10. That is the reason why they tied up the bed room of P.W.14 and made a determined attach on the bed room of P.W.10. When P.W.10 and her husband resisted end did not open the door, it was broken open with the help of crow-bar. When the dacoits, evidently not all, broke open the door leaves and entered into the bed room as is natural for P.W.10, she implored to be saved along with her husband at the cost of valuables. It is clear from her evidence that at first her husband did not listen to her advice and had opened the door. But soon after he (that is her husband) came into the room, and bolted the door. The very fact that the Sinduka containing the valuables had been removed to the bed-room of the younger son instead of elder bespeaks as though he was more courageous and brave than the elder son. That is quite consistent with his behaviour in coming out when dacoits had already got into the court-yard and were bursting crackers. In this setting it is nothing unnatural for the dacoits to direct their attack on him so as to facilitate their purpose. This is also consistent with the admitted fact that they had killed the servant sleeping in the passage room without doing any harm to the idiot servant who was sleeping in the verandah attached to the bedroom of P.W.14. Even the dacoits knew that he had not the necessary intelligence to unrope the door so that P.Ws.9 and 14 could come out. Even the dacoits knew that he had not the necessary intelligence to unrope the door so that P.Ws.9 and 14 could come out. Whatever comments might be made over the identification of the dacoits by P.Ws.9 and 14 through the gap in between the two door leaves can hardly hold good against the identification made by P.W.10. Evidently all her concern was over her husband. She and her husband had faced the dacoits who had broken open the door with crowbar and had got into the bed-room. The dacoits were persons of the district speaking Oriya and as such not utterly strangers either in look, behaviour, talk, dress or physiognomy. It is the consistent evidence that they had made a prior abortive attempt of dacoity in their house. At least 4 to 5 torches were being used. The man who would be focussing the torch would not be seen but the persons coming within the range of the light can very well be identified. All the valuables were in the bed-room of P.W.10. Therefore all the lights would be by and large focussed into the bed-room of P.W.10. It is the evidence of P.W.10 that the two dacoits who assaulted her husband were looking alike and she had identified them to be Subal (R.5) and Raul (R.6). Subal and Raul, as already stated, are two brothers, sons of the same father, belonging to the same village. In this background her statement that they looked alike is nothing strange or absurd. She frankly states and there is nothing to disbelieve her statement that she had not identified at the time of occurrence all the dacoits except the one who watched her and the two who assaulted her husband. There is great consistency in her statement that it is Subal and Raul who attacked her husband and it is Bansi (R.7) who watched her during the occurrence. Also it is Bansi (R.7) who removed the ornaments from her person. It is again Bansi (R.7) who gave her the threat and stated how they would not go disappointed this time as on the previous occasion. In this situation, all her attention would be on the dacoit who watched her, removed her ornaments and those who attacked her husband. It was not as though a fleeting sight that she had got of them, which would leave no impression in her mind's eye. In this situation, all her attention would be on the dacoit who watched her, removed her ornaments and those who attacked her husband. It was not as though a fleeting sight that she had got of them, which would leave no impression in her mind's eye. Giving the greatest latitude in favour of the defence, the occurrence that is beginning from bursting of crackers and the breaking open of the door of the bed-room till leaving the house with the booty it must not have taken anything less than half an hour though the evidence is that it took one hour. During all this time, the only concern of P.W.10 would be on the three persons, one watching her and the two attacking her husband in the bed-room. She also does not mince matters or exaggerate but confines her statement to three. Subsequently when some ornaments used by her, her husband and her son were exhibited in a T.I. parade, she has identified them. Those ornaments had been seized from the house of Jayakrishna (R.9). In her statement she had not stated to have identified Jayakrishna which only indicates that she is a witness of truth. 13. On behalf of the respondent Subal, the criticism over the evidence of P.W.10 is that she staled that she saw accused Subal assaulting her husband with a crow-bar (M.O.VII). She had stated that Subal was wearing a Dhoti and a Pugree. In cross-examination she stated that a man with a full pant assaulted her husband. But P.W.14 who had identified accused Subal had stated that Subal was pushing P.W.10 from behind. P.W.10, It was argued, stated that she was dragged only by one man while P.W.14 stated that Raul and Bansi dragged P.W.10. The evidence of P.Ws.10 and 14 about the parts played by Subal is thus discrepant. This variation between the evidence of P.Ws.10 and 14 is of no consequence when, as we have already said that we are not going to rely on P.W.14. We only confine ourselves to the evidence of P.W.10. Evidence is lo be weighed and not counted. Unless there are material discrepancies in the evidence of P.W.10 or unless it is inherently incredible there is no reason why her evidence alone even though uncorroborated, will not be accepted. It is so convincing and natural that we accept her oral testimony regarding her identification of Subal. Evidence is lo be weighed and not counted. Unless there are material discrepancies in the evidence of P.W.10 or unless it is inherently incredible there is no reason why her evidence alone even though uncorroborated, will not be accepted. It is so convincing and natural that we accept her oral testimony regarding her identification of Subal. Raul and Bansi. 14. Respondent No.8, Benu has made a confessional statement before P.W.22 (Ex.31). Since the learned lower Court has discarded this and much was said about the infirmity it surfers from, we propose to give the full text of it. Section 164, Criminal P.C. statement 15 recorded in a printed form. This respondent was brought by the police and produced in the Court of P.W.22 on 22-5-1971 at 10 a.m. for recording his confessional statement. The Magistrate placed him in charge of the Court won Krushna Chandra Sahu and thereafter the following questions and answers were recorded which on translation is thus: "Q. When were you arrested? A. I was arrested at Manikgoda on the 16th of this month (May 71) in the morning. Q. Where were you taken therefrom? A. I was taken to Khurdha and then to. Nayagarh where I was produced before the Magistrate and then I was under the Police custody. Yesterday I was brought to Court. Then I was sent to Jail yesterday. Today I have been brought to you to this Court from Jail. Q. Do you like to make any statement voluntarily? A. Yes, Sir. Q. Have you been tutored to state something or threatened to say so? A. Nobody has tutored me to say anything nor has threatened me to do so. I am going to state something out of my own accord. Q. What you would state may be utilised against you. Knowing this well would you like to make any confessional statement? A. Sir, whatever I have done I will state the truth. Whatever has happened that also I will state truly. Voluntarily I will state all these. Nobody has taught me or forced me to say anything. Q. Are you guilty? A. Yes Sir, I am guilty. Q. Will you state what you have committed? A. Sir, whatever I have done I will state the truth. Whatever has happened that also I will state truly. Voluntarily I will state all these. Nobody has taught me or forced me to say anything. Q. Are you guilty? A. Yes Sir, I am guilty. Q. Will you state what you have committed? A. (The first part of his confession is in respect of the dacoity committed along with other respondents in the house of one belonging to village Khalagaon and division of the booty with which we are not concerned). (After stating that, he continued further as follows): After this, in the month of Kartik, Bansi of village Durdura lying in the neighbourhood of Nayagarh had been to Puri. Kartika Padhan of Puri had come. Kartika belongs to village Samagara where the murder has taken place. Subal of village Khetribarpur told Marwari Mangu of Itamati. Marwari came to our village and asked us to go to Puri. From our village Gobinda Padhan, Netrananda Samantara and Bhima Paikara and myself we four came to the tank that forms the boundary of two villages, Subal and Raul of Khetribarpur, and Bansi of Durdura and Jayakrishna or Jamsahi came in a car and reached us. The Marwari of Itamati brought a car from Khurda belonging to Dhalu Babu. In that car we all sat. In that car, Bansi, Subal, Raul, Kartika Padhan of Puri, Marwari, Java, Dhalu Babu and myself Gobinda Padhan, Bhima Paikara, Netrananda Samantara all went together. When we left the tank, it was then about 8 p.m. From that place we went to Khurda. We were sitting in the car. Marwari and Dalu Babu went to bazaar. They returned from the Bazar. Then we all proceeded towards Puri. We left the car at Malatipatapur Station. In that car two guns had been taken. Jaya and Netra had taken crackers. Where the car stopped from that place we had to go on foot for 5 miles. When we were proceeding towards village Samagara, the man who had come from Puri told that a great dacoity will be committed. Kartika remained at the Nala of that village. So also Bhima. Bansi took all of us to the house of an inhabitant of that village. When we were proceeding towards village Samagara, the man who had come from Puri told that a great dacoity will be committed. Kartika remained at the Nala of that village. So also Bhima. Bansi took all of us to the house of an inhabitant of that village. Subal, Raul, Bansi put a bamboo cart frame against the thatch of the house of that man with the help of the same, we crossed the thatch and launched in the courtyard. Bansi said, all his valuables ere in this room and so also he is in this room. They hammered at the door of that room. Bansi, Jaya, Subal, Raul all hammered that door. They broke it open by force. I was in the court-yard, so too Govinda and Netra. Bansi, Jaya, Subal and Roul entered into that room. They committed assault in that room. An inmate of that room died of the assault. I was in the courtyard with a lathi. Govinda Padhan had crackers in his hands. He fared those crackers in that house. While coming out opening the front door I found trial a servant of the house had been killed by them. The wife of that man came away to the court-yard. Subal made her sit under the western eaves. A small boy came out of that room crying. I caught hold of that boy. I pushed that boy to his mother and came out. All came out hurriedly. One suit-case had been brought from his room. We all came to the place where Bhima Paikara and Kartika Padhan were sitting. Car was at the place where we had left it. We all got into the car. After crossing Bhubaneswar on the way, we broke open that suit-case. We threw away the suit-case and kept the belongings in a bag, Subal and Banal broke open the suit-case in an open place, I was in the car. I saw them opening the suit-case and throwing it beyond the road to a distance. Rear the pond of our village that forms the boundary of two villages, they distributed the booty. They have given me three ten-rupee notes. All the silver was taken by the owner of the car. He told that with the money he will repair the car. Kartik said that he will not return to the village. Rear the pond of our village that forms the boundary of two villages, they distributed the booty. They have given me three ten-rupee notes. All the silver was taken by the owner of the car. He told that with the money he will repair the car. Kartik said that he will not return to the village. The Marwari said that he would retain him in his house for two to three months. Marwari said that all the gold may be given to him so that he would meet the expenses of Kartika. Our villagers who accompanied us each got thirty rupees. We have not taken either silver or any gold ornaments. We proceeded towards village. All of them proceeded towards Itamati." 15. On behalf of the accused-respondents it was urged with great vehemence that the confessional statement (Ex.31) does not satisfy the rigorous tests of Section 164, Criminal P.C. One of the greatest lacunae pointed out by the defence is that the Magistrate has not put his signature below the certificate and so it can be safely taken that either he was not aware of the requirements of Sec.164 or has done the job most perfunctorily. The Magistrate (P.W.22) has admitted in his evidence that due to pressure of work he could not fill up the columns 7 and 8 of the prescribed form and also due to the same pressure of work he omitted to sign the confessional memo below the confessional statement. Hence it is argued that if the pressure of work was such that he could not fill up cols. 7 and 8 or sign the certificate which is so vital, his statement in Court that he gave necessary warnings and rave out his identity should not be accepted. But, however, to avoid adverse remarks he has attempted to fill up the lacunae while giving evidence in Court. According to the defence when he was examined on 28-3-1972 without any memo of his acts on 22-5-1971, it was well-nigh impossible for him to depose to particular facia from memory. In this context, our attention was drawn to the following portions of his statement: "There is no mention in the order sheet or in the confessional statement that I explained to the accused before recording his statement that I was a Magistrate 1st Class. In this context, our attention was drawn to the following portions of his statement: "There is no mention in the order sheet or in the confessional statement that I explained to the accused before recording his statement that I was a Magistrate 1st Class. There is no record that the accused had known me to be a Magistrate 1st Class. XX XX XX I ascertained on both the dates from the accused if he was free from police influence. But I have not mentioned it in the record." Another sentence pointed out to us was that "on both the dates the accused was produced before me by the Police". Basing on this it was contended that the accused win, produced before the Magistrate from Police custody and there is nothing to show that the Magistrate was satisfied that the accused was free from police influence. It was also contended that in his over-zealousness, the Magistrate had stated as under: "The accused on my query told me that he was in Jail custody from 16-5-1971 to 21-5-1971. But I have not mention it in Ext.31." According to the respondents, the accused was produced on 22-5-1971 at 10 a.m. by the Police, A gap of half an hour only was given for reflection, and thereafter the confessional statement was recorded. As such it cannot be held, to be free from Police influence and voluntary to be acted upon. Further this having been retracted cannot be utilised for any purpose whatsoever. 16. We do not think all the contentions of this score are correct even factually. True, law is very strict that sufficient precautions should be taken by the Magistrate while recording a confessional statement under Section 164, Criminal P.C. and unless one is satisfied that it is voluntary and free from any extraneous influence, it is worth nothing. But how to arrive at that conclusion will vary from case to case. In the instant case, the confessional statement is so elaborate that it runs over 2½ pages closely written in Oriya which cannot be put in the space given in the printed form. Necessarily, therefore, plain paper has to be used. At the end of the statement, the Magistrate has put his signature and given the date. On each page also the thumb mark of the accused Benu has been taken. Much was made of the want of signature against cols. Necessarily, therefore, plain paper has to be used. At the end of the statement, the Magistrate has put his signature and given the date. On each page also the thumb mark of the accused Benu has been taken. Much was made of the want of signature against cols. 6 and 7. But nothing turns on that. He has filled up the blank portion of col. 6 in his own handwriting and on the left of it is the thumb mark of the accused. In the blank space available, before the "signature of the Magistrate" he has put his signature, date and his designation as First Class Magistrate with the insertion "vide report, see pages 2, 3 and 4". This inevitably refers to the plain papers he has utilised for recording the statement. The criticism that due to pressure of work or his ignorance he had omitted to satisfy the mandatory provisions of Section 164, Criminal P.C. has no basis, unless it is confined to the statement of the witness in cross-examination. As already quoted, he has put the question "that you are not bound to make any statement and knowing fully well that whatever you State may be utilised against you in future would you like to make any statement" and the answer given to it is very categorical. The accused has stated, "Yesterday I was brought to Court. Then I was sent to Jail yesterday. Today I have been brought to you to this Court from Jail." From this it is clear that for at least 24 hours he was not in police custody. From the jail he was brought before the Magistrate. Further when on 22nd the confessional statement was recorded, he was put under the charge of the Court peon Krushna Chandra Sahu, who was not in any way concerned with the investigation of the case. The argument that he was produced from police custody and no time was given for reflection is thus factually incorrect and baseless. True, the Magistrate has in his cross-examination said certain damaging things but it is not due to his ignorance or carelessness, but getting into the witness box and deposing to facts that happened about one year back probably without studying the record. True, the Magistrate has in his cross-examination said certain damaging things but it is not due to his ignorance or carelessness, but getting into the witness box and deposing to facts that happened about one year back probably without studying the record. The only comment which has some basis is that the questions do not indicate that he gave his own identity that he is a Magistrate of the First Class, though at all places he was signing describing him as a First Class Magistrate. The whole question, therefore, is if this is an illegality that has vitiated the statement that cannot be utilised for any purpose; or is it a mere irregularity which is curable? We may here appropriately refer to some of the decisions touching upon the subject. In the case of Punia Mallah v. Emperor, AIR 1946 Pat 169 = (48 Cri LJ 30) it is held that- "Mere non-recording of the memorandum at the foot of the confession as required by Section 164(3) or failure to sign it will not vitiate the confession if the provisions of the section have in fact been complied with and the recorded statement has been read over to the confessor and admitted, by him to he correct. The defect may be cured under S.533." The Magistrate should take care to see from what custody the accused was brought. Admittedly in this case, he was brought from the Jail custody. A Division Bench of this Court in the case of Paramhansa Jadab v. State, AIR 1964 Orissa 144 = (1964 (1) Cri LJ 680) has held- "Where the record of the concession of an accused before a Magistrate shows that he was not bound to make a confession and that if he confessed, that confession would be used against him, the mere fact that the record does not show that the Magistrate told the accused that he was a Magistrate does not lead to the inference that the confession was not voluntary. In any case, when the Magistrate. In any case, when the Magistrate. has deposed that he did tell the accused 6hat he was a Magistrate and also asked him as to why he was making a confession, to which the accused replied that as he had done something wrong, he was going to confess, the oral evidence of the Magistrate is admissible under S.533 to show the voluntary nature of the confession." (The underlining are ours) In this case, AIR 1951 Orissa 168 = (52 Cri LJ 174) (FB), (Bala Majhi v. State of Orissa) was followed. Again in the case of Kartar Singh v. Emperor, AIR 1938 Lah 556 = (39 Cri LJ 769) a Division Bench observed: "The accused on being produced before a Magistrate for an order of remand stated that he wanted to make a confession and the Magistrate had his handcuffs removed and gave him ten minutes' time to reflect and then recorded the confession. But the certificate required by Section 164 was not appended to the confession. The Magistrate was examined as a witness and deposed that he had satisfied himself that the confession was being made voluntarily and that he had told the accused that he need not make any confession to him and that if he made one it would be used against him. Held that the confession was admissible in evidence." From the above citations what emerges is that the Magistrate should be satisfied and leave certain materials on record from which the appellate Court will also get a chance to deduce whether the confession was voluntary. In the instant case, the hard undisputed facts are that (a) he was arrested on the 16th of that month; (b) the confession was on 22nd after six days of arrest; (c) he had been remanded to Jail custody the day before; (d) on the day the confessional statement was recorded he was produced from Jail custody; (e) he was also given tune for reflection within the Court where no police officer was present; (f) he was only in charge of the court peon; (g) he was duly cautioned as quoted above in that he was not bound to make any confession and if he did that might be used against him amongst others; as quoted above. Thereafter, stating that he was going to make a clean breast of what he has done with others, he gave a detailed narration that completely fits in with the broad features of the case and thus inspires confidence. The learned lower Court seems to have been very much swayed by the baseless or inconsequential technical defects pointed out and without looking to the substance of it has wrongly discarded the same. From this we should not be misunderstood to lay down a rule that the formalities required under Section 164, Criminal P.C. can be safely given a go-by. Mandatory provisions, however technical they might be, should be complied with. But here in essence the question is whether the confession, taking an over-all picture of it, is to be accepted as voluntary or not. While doing so, various factors have to be taken into consideration, viz. the police influence, if any; prompting or persuation, if any coercion, if any and the like. To a large extent, voluntariness of a confessional statement can be measured from the manner in which it was made, from its general tenor, inherent appeal to common-sense and experience of men and matters. A cryptic statement may leave one in doubt. But an elaborate statement with vivid convincing details can hardly be stigmatised as an involuntary statement which inconsequential formality can outweigh. In this case, the statement itself is self-inculpatory and does not evince any attempt at saving his own skin. In the result, therefore, we are led to hold that in this case the confessional statement Ex.31 is voluntary and the learned Court has erroneously discarded it from consideration. 17. P.W.18 held the T.I. parade of suspects Subar Naik (R.5), Raul Naik (R.6) and Bansi Naik (R.7) on 1-12-1970 at 3.30 p.m. inside Puri Jail. The three witnesses who were brought to identify them were Sulochana (P.W.10), Narayan Khatei (P.W.14) and Balabhadra Padhan (P.W.9). The suspects were mixed up with 15 other under-trial prisoners similarly dressed and of equal height. According to the statement of P.W.18 after each time of identification, the position of the suspects was being changed. P.W.9 identified none. Narayan (P.W.14) identified Bansi (R.7) and Subal Naik (R.5) while Sulochana (P.W.10) identified all the three suspects. She further stated that Subal (R.5) killed her husband with a crow-bar. She also stated that Raul Naik and Bansi Naik were sitting near her. P.W.9 identified none. Narayan (P.W.14) identified Bansi (R.7) and Subal Naik (R.5) while Sulochana (P.W.10) identified all the three suspects. She further stated that Subal (R.5) killed her husband with a crow-bar. She also stated that Raul Naik and Bansi Naik were sitting near her. P.W.14 not only identified Bansi and Subal but also told that Subal went inside the house and Bansi and another dragged his daughter-in-law out of the room. P.W.18 stated in Court that he observed all the formalities and conducted the T.I. parade. Ext.11 is his report. In cross-examination (on 27-3-1972), he stated that he did not remember it all the persons in the T.I. parade were similarly dressed and in what dress the suspects had been put up in the parade. Much was made of this admission of the witness in cross-examination, but that does not the least affect his statement. He held the T.I. parade in December, 1970 and was deposing in March, 1972. He cannot afford to go beyond the record and say something from his memory. Rather his statement appears to be straightforward. There is no suggestion anywhere to P.Ws.9 and 14 that they had ever a chance to sep the suspects before the T.I. parade was conducted within the Jail precincts. The occurrence was in November, 1970, on the night of 6th and the T.I. parade was held on 1st December, 1970, that is, about three weeks after. Some time was consumed in arresting the different accused persons from different places. At least there would be no chance for the widowed Sulochana (P.W.10) to come out of the house and have a look of the suspects. The suggestion that before the T.I. parade she was shown the accused and their photos is barren of substance for in that case she could have identified many more. She had also described the part played by these three suspects. That is also her statement in Court as P.W.10 which is consistent with the judicial confession (Ext.31). The suggestion that before the T.I. parade she was shown the accused and their photos is barren of substance for in that case she could have identified many more. She had also described the part played by these three suspects. That is also her statement in Court as P.W.10 which is consistent with the judicial confession (Ext.31). A general comment was made on the basis of citations reported in AIR 1963 Andh Pra 314 = (1963 (2) Cri LJ 121), (Sharaf Shah Khan v. State of Andhra Pradesh); AIR 1972 SC 283 = (1972 Cri LJ 233), (Hasib v. The State of Bihar); AIR 1970 SC 1321 = (i970 Cri LJ 1149), (Budhsen v. State of U.P.) and AIR 1973 SC 337 = (1972 Cri LJ 1254), (Yeshwant v. State of Maharashtra) that the identification in this case should not be relied on. It is unnecessary to refer to all the citations, for, the law is well settled that the substantive evidence is the statement of a witness in Court and the purpose of T.I. parade is to test that evidence, the safe rule being that the sworn testimony of the witness in Court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding. If there is no substantive evidence about the respondent having been one of the dacoits whom P.W.10 saw on the night of occurrence, then the T.I. parade as against him cannot be of any assistance to the prosecution. Identification parades are ordinarily held at the instance of the Investigating Officer for the purpose of enabling the witnesses to identify either the properties which are the subject-matter of alleged offence or the persons who are alleged to have been concerned in the offence. Such teats or parades belong to an investigation stage and they serve to provide the Investigating authority with material to assure themselves that the investigation is proceeding on the right lines. It is accordingly desirable that such test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimise the chances of the memory of the identifying witnesses fading away by reason of long lapse of time. It is accordingly desirable that such test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimise the chances of the memory of the identifying witnesses fading away by reason of long lapse of time. But much more vital factor in determining the value of such identification parades is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned. The evidence of identification of an accused for the first time in the dock is inherently weak and more specially so when it is done after a lapse of considerable time. But where a direct witness has consistently identified the accused, both at the test parade and at the trial his identification may safely be accepted, unless there are other circumstances indicating that the witness has probably made a mistake. But when the identification in Court is not supported by an earlier test, it is unsafe to act on that evidence in the absence of exceptional circumstances such as adequate descriptive particulars of the accused given earlier by the witness which corroborate the identification. 18. Whether Section 162, Cr.P.C. statement, particularly test identification is barren or not would depend on the circumstances of each case regard being had to the manner in which it is conducted. In this particular case, we see no reason why the T.I. parade should not be treated as acceptable, at least so far as P.W.10 is concerned - whose evidence we hove already quoted. She has stated how "accused Bansi Nath was the man who was keeping watch over me in the court-yard". xx xx "The accused Subal Naik is the man who assaulted my husband with the crow-bar." xx xx One of the dacoits had caught hold of my husband when he was assaulted. The accused Raul Naik is that man". She has identified these three accused persons both in the T.I. parade as also in Court. She has in addition stated in Court that the man who was watching her untied the gold necklace from her neck and took it away. The accused Raul Naik is that man". She has identified these three accused persons both in the T.I. parade as also in Court. She has in addition stated in Court that the man who was watching her untied the gold necklace from her neck and took it away. He also snatched away a pair of ear rings from her ears. There was no scope for her to sec the culprits after the occurrence and before the T.I. parade. She has committed no mistake's in identifying respondents 5, 6 and 7 either in the T.I. parade or in Court. Consequently her evidence cannot be jettisoned on mere fanciful grounds or on the basis of citations which are inapplicable to the circumstances of this case. 19. Coming to the T.I. parade in respect of the various ornaments seized, it was held by Narayan Pradhan (P.W.23) the District Development Officer. He did it at Puri Sadar P.S. on 25-3-1971. Sulochana (P.W.10), Narayan Khatei (P.W.14) were the witnesses brought for identification of articles. The seized articles were mixed up with ornaments of similar size and description. His statement is that the position of the articles un the table was being changed after each identification and it was conducted out of sight and hearing of other identifying witnesses. He stated- "The witness Sulochana identified the suspected Haradaphalia Mala, a pair of silver paunji and a gold ring as her own used ornaments, and the Sorisia Mala as belonging to her son. Witness Narayan Khatei identified all the above articles namely, Haradaphalia Mala, silver paunji and gold ring as belonging to his daughter-in-law Sulochana and the Sorisia Mala as belonging to the son of witness Sulochana. In addition he also identified the suspected pair of gold car rings as mortgaged properly belonging to one Hari Babu of Puri town and the gold chain as mortgaged property belonging to one Bhobani Padhi of village Puta. M.O.III is the Haradaphalia necklace, M.O.IV is Sorisia necklace, M.O.V is gold chain, M.O.VI is the pair of gold ear rings, and M.O.VII is the pair of silver paujis which were identified by the witnesses as stated above.'' His report is Ext.32. Much was made of his statement in the cross-examination. "The police had arranged the articles in the T.I. parade. Much was made of his statement in the cross-examination. "The police had arranged the articles in the T.I. parade. By the time I reached the police station Sulochana and Narayan the witnesses were present within the premises of the police station. After my arrival the articles were produced before me. The witnesses were not summoned by me." Basing on this it was argued that before the identification parade, the stolen articles had been shown to them as they were already present there. But such a criticism is only presumptive, without any basis therefor. In cross-examination, the witness has further stated that he had not taken weight of all the items, that he called one witness after another through his peon and that no police officer was present at the time of the parade. Some discrepancy was sought to be pointed out in the material objects identified with the description given in the F.I.R. (Ex.13). But hardly that is of any consequence. The F.I.R. was given by P.W.14 in a perplexed state of mind soon after the dacoity wherein his younger son had been killed along with a servant. He has given broad details of the articles stolen, some of which were used by her daughter-in-law and some pledged with him. The first item in the F.I.R. referred to is the necklace worn by his daughter-in-law which was removed from his neck and that weighed 5 tolas. An attempt was made to indicate as though M.O.III the Haradaphalia necklace is the item No.1 in the F.I.R. But it is so different, both in weight and description, that there is no scope for confusion. Evidently item No.1 has not been recovered and the Sorisia Mala M.O.IV is another item not specifically described in the F.I.R (Ex.13), P.W.10 has identified M.O.III to be her Haradaphalia Mala which had been given to her by her parents at the time of her marriage that she used for 4 to 5 years. The only things produced for identification were 3 gold necklaces, a pair of gold ear rings, and a pair of silver paunjis. Out of these, Sulochana (P.W.10) identified only the Haradaphalia necklace, the silver paunji and a gold ring as her own and the Sorisia Mala as belonging to her son. The only things produced for identification were 3 gold necklaces, a pair of gold ear rings, and a pair of silver paunjis. Out of these, Sulochana (P.W.10) identified only the Haradaphalia necklace, the silver paunji and a gold ring as her own and the Sorisia Mala as belonging to her son. Narayan Khatei identified all the articles, namely, silver paunji and gold rings as belonging to his daughter-in-law Sulochana and the Sorisia Mala as belonging to the son of witness Sulochana. He also identified the suspected pair of gold ear rings as mortgaged property belonging to one Hari Babu of Puri town and the gold chain as mortgaged property belonging to one Bhobani Padhi. There is nothing to suspect their evidence in Court and the comment as already indicated is without any basis. These items had been seized being recovered from the house of accused Jayakrushna Parida (R.9). Jayakrushna in his S.342, Cr.P.C. examination has stated in this connection thus: "Q. 5- It is in the prosecution evidence that from your house the gold ornaments M.Os.III to VI belonging to P.W.10 and P.W.14 xx xx were recovered and seized by the I.O.? Do you want to explain anything? A.- It is false. Q. 6- It is in prosecution evidence that P.W.10 and P.W.14 identified M.Os.III to VI to be theirs in the T.I. parade. Do you want to say anything? A.- I cannot say it. The gun belongs to me. Q. 7- Do you want to say anything more? A.- The gun M.O.IV was produced by my wife at the P.S. On search of the house of Jayakrushna Parida (R.9) on 23-11-1970 at 6 a.m., eleven items of articles were seized as per Ext.3/1 out of which the first five items were either full pant, pant or torch lights and the rest items "appearing as gold" as stated in the search list. Those were seized before the seizure list witnesses Padma Charan Barad (P.W.3) and Prahallad Padhan. P.W.3 is a co-villager of Jayakrushna and his house is only 3 houses apart. He is a signatory to seizure list Ext.3/1 but has been declared hostile in as much as he stated that:- "About one and half years back one day at about 8 a.m. the police S.I. asked me at the outskirt of the village to sign in a paper. So I signed it. He is a signatory to seizure list Ext.3/1 but has been declared hostile in as much as he stated that:- "About one and half years back one day at about 8 a.m. the police S.I. asked me at the outskirt of the village to sign in a paper. So I signed it. I do not remember if I signed in a blank paper or a written paper. Prahallad Padhan and Gurucharan Baral were near me when I signed on the paper. Ex.3 is my signature. I have relation with accused Jayakrishna Parida as a co-villager. He is not my relative or friend. Jayakrishna is a well-to-do man. While I was sitting in front of my house the S.I. called me. I did not see the S.I. going to the house of Jayakrishna Parida. I did not see any seizure of articles in the house of Jayakrushna Parida." It was contended on behalf of Jayakrishna that P.W.3 had denied to have seen the seizure of the articles and P.W.20 who seized the articles has not specifically stated that the accused Jayakrishna was present at the time of search and seizure. As 4 to 5 other inmates were there in the house where Jayakrishna Parida was living, it was argued, that it being a joint house belonging to several people, it could not be stated specifically that they were recovered from the room in the exclusive possession of Jayakrishna Parida. Thus there was nothing to connect Jayakrishna with these ornaments identified in the T.I. parade. It was, however, contended that recovery of the stolen articles, if believed, will only lead to the presumption that he was in possession of stolen articles but not his participation in the dacoity or murder. In the absence of any other evidence to connect Jayakrishna with the crime relying on the retracted confession of Benu, the charge of dacoity cannot be said to have been proved as against him. Nor it can be either held that the police procured these ornaments and planted them in the house of Jayakhrishna and then made a show of recovery. No such suggestion has been put to the investigating Officer. Since the ornaments have been identified by P.Ws.10 and 14 to be belonging to them, the presumption would be that Jayakrishna must have been a receiver of stolen properties if not the thief and thus liable under Section 414, I.P.C. 20. No such suggestion has been put to the investigating Officer. Since the ornaments have been identified by P.Ws.10 and 14 to be belonging to them, the presumption would be that Jayakrishna must have been a receiver of stolen properties if not the thief and thus liable under Section 414, I.P.C. 20. We are conscious of the principles laid down when an order of acquittal can be interfered with. In the instant case, we find the learned lower Court appreciated the evidence in a mechanical manner and becoming too technical has discarded the evidence of P.W.10 and the confessional statement on grounds that are irrational or baseless. Again he has lost sight of the evidentiary value of the identification parade of the suspects, Subal, Raul and Bansi as also of the stolen articles, recovered from the house of Jayakrishna. This we think is a fit case where interference would be justified. 21. From the above analysis it would be clear that though there has been admittelly a dacoity with murder in the house of P.W.14, most of the dacoits could not be identified properly because of the persons who could have done so were either killed or kept away. The only documentary evidence is the retracted confessional statement Ext.31 which by itself cannot form the basis of a conviction of all the respondents though there are inklings which show their active participation in the crime. However, the evidence against Subal (R.5), Raul (R.6) and Bansi (R.7) is direct in that P.W.10 has specifically identified them which can be safely relied on. They have been also implicated in the same manner by P.W.10 as appears in the confessional statement of Benu which only reinforces the same. These persons are strangers to the place and there is no reason why they would be falsely implicated by P.W.10 nor there is any scope for confusion so far as they are concerned. But in the absence of any proof of conspiracy or identification of other accused persons, these three accused (Respondents 5, 6 and 7) are liable to be convicted. Accordingly we convict them under Section 396 of the Indian Penal Code and sentence each of them to imprisonment for life. So far as Jayakrishna (R.9) is concerned, he is held guilty under Section 414 of the Indian Penal Code and sentenced to two years' rigorous imprisonment. Accordingly we convict them under Section 396 of the Indian Penal Code and sentence each of them to imprisonment for life. So far as Jayakrishna (R.9) is concerned, he is held guilty under Section 414 of the Indian Penal Code and sentenced to two years' rigorous imprisonment. There is so evidence against Bhima Paikray (Respondent No.10). So his acquittal is proper. The rest of the accused, namely, respondents 1, 2, 3, 4 and 8 are given benefit of doubt and their acquittal is confirmed. 22. In the result, the appeal succeeds in part, the accused Subal Naik (Respondent No.5). Raula Naik (Respondent No.6) Bansi Naik (Respondent No.7) are convicted under Section 396 of the Indian Penal Code and sentenced to rigorous imprisonment for life; and accused Jayakrishna Parida (Respondent No.9) is convicted under S.414 of the Indian Penal Code and sentenced to two years' rigorous imprisonment. If any of them would be on bail, he should surrender to the bail bond forthwith to serve the sentence. Acquittal of the rest of the respondents, namely, Respondents 1, 2, 3, 4, 8 and 10 is confirmed. If they be under custody, they be released forthwith and their bail bonds, if any, be cancelled. The ornaments Items 3 to 6 identified by P.Ws.10 and 14 in the T.I. parade be returned to them and the rest of the articles to those from whose custody they had been seized. R. N. MISRA, J. :- I agree. Appeal partly allowed.