JUDGMENT 1. - These three appeals arise out of the judgment of the learned Sessions Judge, Alwar, dated 30th April, 75, by which he Convicted the appellants Ramnath Singh and Bhagwan Singh under S. 395 read with S. 397 and 396 IPC and sentenced them each to rigorous imprisonment for seven years on each count. Sentences were made concurrently. Appeal No. 432/75 is from jail by both. Appeal No. 334/75 and 396/75 are their represented appeals. They are being disposed of by this common judgment. 2. On the night between 13th and 14th August, 73, a dacoity took place in the house of Chhaju Ram Mahajan in village Ganjpur within police station Kathumar. The inmates of the house were sleeping. Mst. Shakuntla PW 2 wife of Chhaju Ram heard some one on the roof of the house saying that they were entitled to take away the property of Chhaju Ram as he had been taking theirs and anybody who intervened, shall be done to death. Mst. Shakuntla woke up and also awakened her daughter Dropadi PW 7. By then, the dacoits were knocking the door. Dropadi unlocked the door from inside and ran out of the room. Two persons entered the room who broke open the lock of a box. Another box was without a lock. The dacoits collected the articles out of those boxes. They then, asked Shakuntla to deliver the key of the other Kotha. When she refused then at the direction of the person standing on the roof, she was hit by a Danda in her legs. According to Mangal Ram PW 8 one of the dacoits had earlier kicked him and asked for the key. He said that the keys were with his uncle. Three persons then went to his uncle, one remained with him and one climbed the shop. He then, saw that the dacoits grappled with his uncle. They pulled him out of the `Chappar' and shot him dead in the chowk. Shambhu Dayal PW 9 aged 14 years had similar story to tell. When Gyarsa PW 3 heard about the dacoity, and had come into the Tibara of the house, the shots fired by dacoits also hit him on the shoulder and a pellet aLso struck his niece. A report of this occurrence, was lodged in the police station Kathumar by Kanwar Pal PW 1. 3. When Gyarsa PW 3 heard about the dacoity, and had come into the Tibara of the house, the shots fired by dacoits also hit him on the shoulder and a pellet aLso struck his niece. A report of this occurrence, was lodged in the police station Kathumar by Kanwar Pal PW 1. 3. The police registered a case and forwarded the dead-body of Chhaju Ram for post-mortem examination. According to Dr. D. D. Gupta PW 11, the deceased Chhaju Ram had 20 gun shots wounds. Pieces of wad and several pellets were found in the body. Gyarsa PW 3 had a gun shot wound on the right shoulder and another on the right upper arm Shambhu Dayal PW 9 had a lacerated wound on the left cheek and n bruise on the chest. One Narma had 13 gun shot wounds. 4. Pooran Chand PW 13 prepared the site plan and collected two empty cartridge cases and 6 wads pieces and some pellets from the place. He had also arrested Ram Nath Singh accused in some other case. Nar Singh Dev PW 16 stated that accused Ram Nath Singh gave the disclosure information Ex. P 25 and in consequence of this information and at the instance of the accused, her recovered on 29-11-73 one pair of `Kada' and one silver `Hansli' from his tube-well, vide memo Ex. P 26. Ex. P 9 is the list of the stolen articles which are about 14 in number. But it appears that the police was not able to recover all of them. Accused Bhagwan Singh gave information Ex. P 27 in consequence of which one waist chain was dug out by the accused from near a Tibara on the road side vide memo Ex. P 16 dated 17-12-73. 5. Shri Shiv Lahari PW 15 was the Sub-Divisional Magistrate, Alwar on 14-11 -73. Accused Ram Nath Singh was put up before him in a test identification. Out of 7 witnesses only Mangal and Shakuntla were able to correctly identify Ram Nath Singh. Shri Chatra Ram PW 14 was the Munsiff Magistrate, Alwar on 29-11-73. Bhagwan Singh accused was put before him for test identification. Out of seven witnesses Shakuntla alone was able to identify Bhagwan Singh. Ramji Lal PW 5 is the jailor in Alwar who stated that accused Ramnath Singh and Bhagwan Singh both were kept `Beparda' by him until their identification parade. 6. Bhagwan Singh accused was put before him for test identification. Out of seven witnesses Shakuntla alone was able to identify Bhagwan Singh. Ramji Lal PW 5 is the jailor in Alwar who stated that accused Ramnath Singh and Bhagwan Singh both were kept `Beparda' by him until their identification parade. 6. Out of the six dacoits, the police was able to arrest only three who were eventually committed to the court of session. The learned Sessions Judge, Alwar discharged Ranjit Singh but convicted appellants Ramnath Singh and Bhagwan Singh under section 395 read with 397 and 396 IPC. He sentenced them on each count to rigorous imprisonment for seven years. Both the sentences were directed to ran concurrently. Hence these appeals. 7. The learned trial Judge found that the fact of dacoity in the house of Chhaju Ram and his murder were proved by the statements of Kan war Pal PW 1, Shakuntla PW 2, Gyarsa PW 3, Mangal Ram PW 8 and Shambhu Dayal PW 9. 8. As regards the question whether the two appellants were members of the dacoity party, the only evidence was of identification and recovery of the looted articles. Mangal Ram PW 8 was able to identify only Ramnath Singh in the test identification. fIn the court also Mangal Ram identified him. Shakuntla PW 2 deposed that she had seen the two culprits when they had entered the room and beaten her. In her cross-examination, she stated that before the test identification, the accused were brought to the village in the night by the police and she was able to immediately recognise them. 9. As regards the identification of the articles Shakuntla PW 2 stated that the waist chain was one of the stolen articles and though `Hansli' and the pair of Kadas did not belong to her but those looked like the articles which were pledged by some one with her husband. Mst. Dropadi PW 7 however, said that all these three articles were of her mother. She deposed that the waist chain was prepared at the time of her marriage. Hari Shanker Sharma PW 6 deposed that in a test identification held before him, both Shakuntla and Dropadi had correctly identified the `Hansli', waist chain and the pair of Kadas. 10. The learned, trial Judge observed that Mst. She deposed that the waist chain was prepared at the time of her marriage. Hari Shanker Sharma PW 6 deposed that in a test identification held before him, both Shakuntla and Dropadi had correctly identified the `Hansli', waist chain and the pair of Kadas. 10. The learned, trial Judge observed that Mst. Shakuntla was an illiterate lady and was in a sTate of obvious confusion, but the evidence of Mangal Ram PW 8 could not lightly be brushed aside because he correctly identified the accused both at the test identification parade and in the court. The learned trial Judge further observed that except for the minor lapses, the value of the parades held by the magistrates could not seriously be doubted. In his opinion, the accused were satisfactorily identified as having participated in the dacoity. 11. As respects the identification of the recovered articles, the learned Judge found that there was some suspicion about the correct identification of the waist chain made by Dropadi but there was no such doubt about the other two articles. 12. These findings of the learned Judge are under challenge. It has to be remembered that it is the identification made by the witnesses in the court which is a substantive piece of evidence. The test identification provides corroborative evidence to lend assurance to the identification made in the court. The value of the test identification made by Shakuntla has been reduced almost to nothing because the accused were shown to her beforehand. The identification made by her in the court, thus stands unconfirmed, However, Mangal Ram PW 8 has identified Ramnath Singh both in the test parade and in the court. He also denied that he had seen the accused before the test identification. But Mangal Ram was not able to identify Ramnath Singh. 13. As regards the articles, these were recovered on 29-11-73, and 17-12-73, while the dacoity took place on 13-8-73. The waist chain was recovered at the instance of the accused Bhagwan Singh, from an open place. Moreover, the learned trial Judge was even of the view that both the women were confused and the identity of the waist chain was not free from suspicion. In these circumstances, I agree that there is hardly any cogent evidence on which the conviction of the appellant Bhagwan Singh can be sustained. 14. Moreover, the learned trial Judge was even of the view that both the women were confused and the identity of the waist chain was not free from suspicion. In these circumstances, I agree that there is hardly any cogent evidence on which the conviction of the appellant Bhagwan Singh can be sustained. 14. So far as the appellant Ramnath Singh is concerned, the identification made by Mst. Shakuntla of the articles recovered at his instance is of little importance because she stated that the articles looked like theirs. This evidence is not sufficient. Mst. Dropadi said that the Hansli' and Kadas were of her mother but her mother Shakuntla has not said so. The recovery of the articles therefore, prove nothing against the accused. We are thus left only with the evidence of Mangal Ram against him. The learned trial Judge relied upon him and 1 do not see any reason why he should not be believed when he said that Ramnath Singh was one of the dacoits. His evidence is corroborated by his performance at the test identification. The case of the prosecution as against him therefore, stands proved.Consequently, I direct that (1) the appeal of Ramnath Singh be dismissed ; (2) the appeal of Bhagwan Singh is accepted. His conviction and sentence are set aside. He shall be released forthwith if not otherwise wanted. *******