JUDGMENT D. B. Lal, J.—This appeal by the State is brought from the judgment of the Sessions Judge, Kangra in a case under sections 395/397 of the Indian Penal Code, whereby the accused have been acquitted. 2. The case of the prosecution was, that Roop Singh, Sohan Singh, Sarab Raj Singh, Shanti Parkash, Ajaib Singh and Surjit Singh joined together and the object was to commit dacoity. Accordingly, Roop Singh was asked to engage Taxi No. PNA/8171 of which the owner-driver was one Niranjan Singh from Amritsar to take them to Hamirpur, Roop Singh engaged that Taxi on February 25, 1968 and asked Niranjan Singh to bring it to village Kadian where these accused were to board that Taxi at 5 a.m. on February 27, 1968. The fare settled was Rs. 100 and R. 10 were paid in advance. Accordingly, on that date Roop Singh was brought by Niranjan Singh in his Taxi and in the way the remaining accused boarded the vehicle and all of them reached the village Tropka at about 4 p. m. That village was a little beyond Hamirpur. At Tropka the Taxi was left and Niranjan Singh was asked to wait for the accused. Thereafter the six accused went on foot and according to the prosecution reached village Kanjian at about 7 p.m. Inside that village, besides others, two shops existed one of Longu Ram and the other of his brother Brij Lai. Two of the accused stayed near the heap of stones lying at the shop of Brij Lal and four of them, namely, Sohan Singh, Surjit Singh, Roop Singh and Sarab Raj Singh proceeded towards the shop of Longu Ram. It is stated that Sohan Singh was armed with a Drat while Surjit Singh was armed with a Kirpan. The other two accused were armed with pistols. On reaching the shop of Longu Ram, Roop Singh and Sarab Raj pointed their pistols and asked Longu Ram to hand over the cash box. Wherefrom Roop Singh snatched that cash box and recovered Rs. 153 from it. Thereafter, Sarab Raj was asked to wait there with pistol and the other accused proceeded towards the adjoining shop of Brij Lal. These accused were Sohan Singh, Roop Singh and Surjit Singh. Roop Singh again showed h is pistol to Brij Lai and wanted him to hand over the cash. It is stated that Rs. 153 from it. Thereafter, Sarab Raj was asked to wait there with pistol and the other accused proceeded towards the adjoining shop of Brij Lal. These accused were Sohan Singh, Roop Singh and Surjit Singh. Roop Singh again showed h is pistol to Brij Lai and wanted him to hand over the cash. It is stated that Rs. 23 were recovered by Roop Singh which were handed over to him as cash by Brij Lal. Sohan Singh also deprived Brij Lal of Rs. 4 which were found in his pocket. 3. The prosecution case proceeded that Brij Lal thought of a contrivance to hoodwink the dacoits. He told them that he would bring more money from the upper storey of the shop. He was permitted to go there and he bolted the door from inside. Thereafter, Brij Lal raised a hue and cry which attracted the notice of his brother Rup Lal who came there and saw that the three accused were hammering the doors and wanted to break them open. Rup Lai caught hold of Sohan Singh but at that time he was attacked by Sohan Singh, Surjit Singh and Roop Singh. According to the prosecution he was injured by them by Kirpan and Drat and after he fell unconscious he was given a pistol shot by Roop Singh. Thereafter, the dacoits finding that they could not proceed any further, they made good their escape calling in the way Sarab Raj who was keeping watch for them. At about 12 p.m. in the mid-night they went back to the taxi and Niranjan Singh was waiting for them. Subsequently, they were brought by Niranjan Singh in that taxi back to village Kadian. 4. After the incident was over, Roop Lai was found injured and he was removed post-haste to Primary Health Centre, Boraj, where Dr. K. S. Sikdar examined him. The following injuries were found by the Doctor on his person : 1. One injury on scalp over frontal bone, 5" above nasion and just left to midline—-2"x 1/6" depth 1/3", Margin rough. 2. One injury at the Metacarpo-phalangial region lateral aspect of left index finger 14/2" x 1/4", depth 1/4" Margin rough. 3. One injury on left plam above ring and middle finger 11/2" x 1/4" depth 1/4" Margins irregular. 4. Small abrasions of fingers and palms of left hand. 5. 2. One injury at the Metacarpo-phalangial region lateral aspect of left index finger 14/2" x 1/4", depth 1/4" Margin rough. 3. One injury on left plam above ring and middle finger 11/2" x 1/4" depth 1/4" Margins irregular. 4. Small abrasions of fingers and palms of left hand. 5. A bullet shot on left 8th rib—11/2" Post, to Ant- Axillary lin. with charred and inverted borders—1/3" in diameter—air bubble came out on squeezing signifying injury to lungs. 6. Tenderness on 2nd and 3rd Lumber spine alongwith pain in pelvis atonia and loss of movement of lower limbs loss of pain and touch sensation below mid thigh and downwards, loss of masteric, knee ankle and planter reflexes (All on both lower limbs) passed stool while being examined (Sphincter control loss) urine not passed—bladder empty. 7. One abrasion 1/2" x 1/2" on back right to midline in between 10th and 11th Lumber spine. 5. The Sarpanch also arrived and Longu Ram was sent to institute the First Information Report. He reached Dehra and happened to meet the Sub-Inspector. He gave out the narration of the incident and on that basis the First Information Report was instituted at 5-10 p.m. on that very day at Police Station, Hamirpur. Sadhu Ram, A. S. I. registered a case under sections 395 and 397. Longu Ram also gave out a description of the dacoits who were not known to him. The usual investigation followed and these accused were arrested. From Roop Singh, revolver Ex. P-15 was recovered. When the Investigating Officer reached the spot he had found Ex. P.3 a bullet lying near the shop of Brij Lal. He also recovered from near about places, two pairs of shoes. While Ajaib Singh was arrested, pistol Ex. P.9 was recovered from him along with four live cartriges Exs. P-ll to P-14. The accused were produced in test identification parades which took place on three occasions in March 1968, in April 1968 and in May 1968. Roop Singh was identified by two witnesses, i.e. by Longu Ram and Naranjan Singh while Sarab Raj Singh was identified by one witness. The remaining accused either refused to be identified or were not identified by any of the witnesses. Roop Singh was identified by two witnesses, i.e. by Longu Ram and Naranjan Singh while Sarab Raj Singh was identified by one witness. The remaining accused either refused to be identified or were not identified by any of the witnesses. Shri I. D. Kaushesh, the S. D. M. conducted a test examination in respect of the pairs of shoes and it was stated that these shoes fitted Sarab Raj Singh and Surjeet Singh. The prosecution also produced some witnesses to prove that toll tax was paid for the said taxi while it crossed Dehra and Nadaun bridges. It was also asserted on behalf of the prosecution that the accused Shanti Parkash and Sarab Raj Singh being students were found absent from their classes. 6. On the basis of this evidence, the six accused named above were prosecuted for the offence under sections 395 and 397,1. P. C. 7. The defence of the accused was one of denial and they asserted in respect of the test identifications that they were shown to the witnesses and hence no reliance could be placed on such identification evidence. 8. The prosecution produced in all fifty two witnesses, of whom the important ones were Longu Ram, PW-1, Isathu Ram, PW-2 and Ramesh Chand, PW-7, who stated for the dacoity committed at the shop of Longu Ram. Brij Lai, PW-27, Jagat Ram, PW-29 and Rup Lai, PW-40 stated for the dacoity committed at the shop of Brij Lai. Naranjan Singh, PW-8 gave the statement as he was the driver of the taxi which brought the accused to a place near the village of occurrence. The two Doctors, Banerji, PW-13 and Sikdar, PW-14 came to state for the injuries. The Magistrates, including Shri I. D. Kaushesh, PW-28, were examined to prove the identification, and also the test which took place in respect of the two pairs of shoes. Sadhu Singh, A. S. I. PW-44, Kartar Singh, PW-47 and Panna Lai, PW-48 stated for the recovery of the revolver Ex. P-15. Sohan Singh, PW-36, Udham Singh, PW-37 and Dilbar Singh, PW-39, A. S. I. stated for the recovery of the pistol Ex. P.9 from Ajaib Singh. Besides the prosecution witnesses, the defence produced two witnesses. Sadhu Singh, A. S. I. PW-44, Kartar Singh, PW-47 and Panna Lai, PW-48 stated for the recovery of the revolver Ex. P-15. Sohan Singh, PW-36, Udham Singh, PW-37 and Dilbar Singh, PW-39, A. S. I. stated for the recovery of the pistol Ex. P.9 from Ajaib Singh. Besides the prosecution witnesses, the defence produced two witnesses. DW-1, Kuldip Singh, stated for the transfer of the taxi in the name of Naranjan Singh, tJW-8 and the other witness DW-2 was the ballistic expert who was examined to dislodge the evidence regarding matching of the bullet Ex. P-3 with the revolver Ex. P4. 9. The learned Sessions Judge, who tried the case, considered all this evidence, but in his opinion the identification of these accused could not be established beyond a reasonable doubt He also did not place any reliance on the recoveries as well as on the other circumstances made out. He disbelieved the statement of Naranjan Singh, PW-8. With that finding the learned Judge acquitted all the accused. The State felt aggrieved of the decision and preferred this appeal. 10. It is evident, the scales in this case turned upon the evidence regarding identification of individual accused by the witnesses. Since that part of evidence is of prime importance, we propose to deal with it in some detail. There are numerous judicial decisions, and we have no hesitation to subscribe to that view, that identification made by the witnesses during trial is primary and substantive evidence in the case. An identification parade belongs to the stage of investigation by the Police. Like any other evidence procured during investigation, a test identification parade and result thereof, can be utilised either for corroboration or for contradiction. Being some evidence procured during investigation, certainly it will not be a primary or substantive evidence during trial. There may be cases where identification of the assailants is more probable either because the occurrence takes place during day time or because there is otherwise sufficient light to detect the assailants. Due to proximity of the victims with the assailants or due to prolongation in the event of assault, again circumstances may be made out whereby it could be held that the assailants were easily identifiable. Due to proximity of the victims with the assailants or due to prolongation in the event of assault, again circumstances may be made out whereby it could be held that the assailants were easily identifiable. In those cases perhaps a test identification parade may not be necessary That apart, there may be a case where circumstances are made out so that it may be impossible to hold that the features of the assailants could be noted by the witnesses, and in such a case not only the identification made during trial will be disbelieved but even the supporting identification parade will also be disbelieved. In between, there are numerous cases where circumstances exist so that it cannot be held with any amount of certainty as to whether the witnesses could or could not see the assailants. These circumstances may be due to paucity of light or due to the fleeting moments when the assault took place. The circumstance could even be that the victim after suffering the assault fell down unconscious and hence could pot see the assaulants. In such a case where nothing definite can be inferred, the mere identification by the witnesses made during trial may not be considered sufficient. The court will require corroboration of that identification from a previously held test identification parade. In the present case there is evidence to indicate that the night was dark. The source of light was a kerosene lamp burning at the shop of Longu Ram and presumably one such lamp was burning at the shop of Brij Lal. Jagat Ram, PW. 29, who was a neighbour opened his door when he heard the shrieks of Rup Lai, while the latter was being beaten by the dacoits. When Jagat Ram, P. W. 29 opened the door he flashed his torch and it is difficult to say if he could see each and every assailant. At any rate, he could not identify any one of them. In such a situation, the present case belonged to that category where a prior test identification parade was a must and, in our opinion, the learned trial Judge was not wrong when he inferred that the evidence based on identification during trial was not sufficient. 11. We shall then examine the case of individual accused in the light of the observations made above. 11. We shall then examine the case of individual accused in the light of the observations made above. In our opinion, the case of Roop Singh respondent will be considered separate from the case pertaining to the other respondents. As regards Roop Singh, there was evidence of two identifications of Longu Ram, PW-1 and Naranjan Singh, PW-8 during test identification parade which took place in March, 1968. Besides that evidence nearly every eye-witness identified him in the court. At this stage, we have to consider the statement of Naranjan Singh, PW-8. According to Shri Bakshi Sita Ram, the learned counsel representing the State, the statement of Naranjan Singh. PW-8 was by far more important and the learned trial Judge committed an error of discarding that evidence. After going through the statement of Naranjan Singh, PW-8, we subscribe to the opinion held by the learned counsel, Naranjan Singh, PW-8 was disbelieved by the learned trial Judge primarily o n the ground that he disputed if he was at ail the owner of the taxi PNA/8171. In that connection reliance could be placed upon the statement of Kuldip Singh, DW-1. This witness categorically stated that Naranjan Singh, PW-8 had taken the taxi under hire purchase agreement. He was paying in instalments and it is common experience that once the drivers start paying instalments they do utilise the vehicle for plying on the road. Similarly, Naranjan Singh started paying inrtalments, took possession of the vehicle and earned by plying it as taxi. According to DW-1 Kuldip Singh, Naranjan Singh applied for the transfer of the vehicle in March 1968 somewhere immediately near the date of this incident. However, according to Naranjan Singh, PW-8 himself he applied for the transfer of the vehicle much earlier. That may or may not be correct, but Kuldip Singh DW-1. whose statement was more authentic, clearly stated that Naranjan Singh ultimately became owner of the vehicle. He was admittedly paying the instalments and there is every reason to believe that he was plying the vehicle as taxi for his own benefit. Therefore, the statement of Naranjan Singh could not be discarded merely because he had not become the full-fledged owner of the vehicle on the date of the incident. He was admittedly paying the instalments and there is every reason to believe that he was plying the vehicle as taxi for his own benefit. Therefore, the statement of Naranjan Singh could not be discarded merely because he had not become the full-fledged owner of the vehicle on the date of the incident. The witness stated that Roop Singh came a ad engaged the taxi and that he brought him up to a certain village where the remaining five respondents boarded the vehicle. Thereafter, all of them reached the village Tropka. From that place the respondents proceeded towards the village Kanjian. The learned trial Judge also disbelieved the statement of Naranjan Singh because he found certain interpolations in the diary Ex. PJ wherein the witness had noted the amount of fare received from Roop Singh. We have peruse d this diary and it is evident that it was not regularly kept in the ordinary course of business. It was merely a memorandum and it could even be that Naranjan Singh, PW-8 scribbled down a figure which was there just for his remembrance. The learned trial Judge should not have paid so much attention to this diary. No doubt there is some entry there regarding the payment of Rs. 10 as fare on that particular day. As to the over-writings, mentioned by the learned trial Judge, there is no doubt some over-writing, but as long as we place reliance otherwise on the statement of Naranjan Singh, PW-8, in our opinion we cannot discard the diary Ex. PJ, nor can we hold that Naranjan Singh, PW-8 is to be disbelieved on that account. It was then stated and agreed to by the learned trial Judge that the taxi met with some accident and perhaps the number plate got loose because of that accident. Naranjan Singh PW-8 was examined on that account. It could not, however, be inferred from his statement that the number plate was at all missing. In our opinion, it was not difficult to find out the number of the vehicle dispite that accident and there is indication from the evidence of Naranjan Singh, PW-8 that the number plate was in tact and it was not difficult to discover it at the time the vehicle was recovered by the police. In our opinion, it was not difficult to find out the number of the vehicle dispite that accident and there is indication from the evidence of Naranjan Singh, PW-8 that the number plate was in tact and it was not difficult to discover it at the time the vehicle was recovered by the police. Finally, it is stated by the learned trial Judge that Naranjan Singh was a notorious character and as such should not be relied upon. In that connection a suggestion was thrown to Naranjan Singh, PW-8 that he was a smuggler along with one Balwant Singh. The suggestion was emphatically denied by Naranjan Singh, PW-8. As regards Balwant Singh, his statement was that Balwant Singh suffered death at the instance of some army personnel, but that could not necessarily be an incident concerning smuggling. All the suggestions made to the witness were denied by him and the learned trial Judge made certain presumptions for which he could not be justified. We are, therefore, of the opinion that Naranjan Singh, PW-8, could be absolutely relied upon. 12. With the evidence of Naranjan Singh, PW-8, it could easily be inferred that Roop Singh, respondent, as well as his other companion accused boarded this taxi and came to village Tropka. That was, no doubt, a circumstance against Roop Singh and similarly against other respondents. This circumstance, coupled with the identification of Roop Singh by two witnesses during test identification parade, were sufficient, in our opinion, to implicate him in this offence. The prosecution further relied on Ex. P. 15, the revolver recovered from Roop Singh. There are, however, some difficulties regarding this revolver which is stated to be matching with the bullet Ex. P-3. The report of the ballistic expert no doubt indicated that the bullet Ex. P-3 was fired from this revolver Ex. P. 15, But the gun shot injury which is injury No. 5 on the person of Rup Lai, PW-49, did not possess any wound of exit. That injury is a wound of entry, and the presumption would be that the bullet entered the body and never came out. Not one question was put to the two Doctors as to whether any wound of exist was there. It was not asked as to whether the bullet Ex. That injury is a wound of entry, and the presumption would be that the bullet entered the body and never came out. Not one question was put to the two Doctors as to whether any wound of exist was there. It was not asked as to whether the bullet Ex. P-3 could have caused that injury, and if that was so how was it that the bullet never came out of the body. It was the uniform evidence of all the witnesses that there was only one gun shot and if the pistol was fired once and Ex. P-3 was the bullet used, in our opinion, there should have been a wound of exit. From this point of view, a matching of the bullet Ex. P-3 with the revolver Ex. P-15 would be of no avail to the prosecution. The learned trial Judge has taken note of this circumstance and we are in agreement with him. There is another difficulty regarding the matching of the bullet Ex. P-3. According to the report of the ballistic expert, the revolver Ex. P. 15 was not in working order. A test bullet was forced into the barrel of the revolver and thereafter the markings were noted and compared with Ex. P-3. Due to this defect in the revolver Ex. P-15, obviously no bullet could be fired from it. In these circumstances, the comparison in relation to the markings either in the bullet or in the barrel could not be so much depended upon. We are, therefore, in agreement with the learned trial Judge and hold that the revolver Ex. P-15 or the bullet Ex. P. 3 could not constitute dependable evidence against Roop Singh. Nevertheless, we consider that the identification of Roop Singh was dependable. He was identified by two witnesses during test identification parade. Naranjan Singh, PW-8, further corroborated the participation of Roop Singh in this crime. We, therefore, allow the State appeal in respect of Roop Singh respondent. This accused, in our opinion, did take part in the offence. 13. As regards the remaining respondents, nothing much could be stated against them. We can classify these respondents in three categories. We shall consider the case of Ajaib Singh and Shanti Prakash in the first instance. As regards these two accused, evidently no assault is ascribed to them. This accused, in our opinion, did take part in the offence. 13. As regards the remaining respondents, nothing much could be stated against them. We can classify these respondents in three categories. We shall consider the case of Ajaib Singh and Shanti Prakash in the first instance. As regards these two accused, evidently no assault is ascribed to them. It could only be stated casually that these two accused perhaps stood somewhere near heap of stones, as stated by Brij Lal. Except that part assigned to them, neither they came to the two shops nor took part in any other overt act concerning the dacoity. They were not identified by any of the witnesses in the test identification parade. The pistol Ex. P. 9 was said to be recovered from Ajaib Singh, but evidently at the time of the incident Ajaib Singh was not armed with any pistol. In respect of the recovery of this pistol a criminal case started against Ajaib Singh and the latter was acquitted in that prosecution case. Therefore, the only evidence against Ajaib Singh was that he went m that taxi with Naranjan Singh PW-8. That part of evidence, in our opinion, would not be sufficient to implicate him for this offence. 14. As regards Shanti Parkash, he too was stated to have waited near some stone heap and he also came in that taxi with Naranjan Singh PW-8. It was also stated that he absented himself from school. These circumstances alone, in our opinion, will not implicate him for the offence. It was further stated that Shanti Parkash refused to be identified. But that circumstance will be of no avail when there was no other cogent evidence to implicate him in the offence. The other set of accused who have to be considered in this connection are Surjit Singh and Sarab Raj. As regards Sarab Raj, it was stated that he pointed the pistol towards Longu Ram and also subsequently waited with his pistol at his shop. It is manifest that Longu Ram did not identify him. Similarly, none other person at the shop of Longu Ram at that time could identify him. In the test identification parade only Naranjan Singh identified this accused. Thus, the identification made by the witnesses of this accused in court was not corroborated by the identification, if any, made during test identification parade. Similarly, none other person at the shop of Longu Ram at that time could identify him. In the test identification parade only Naranjan Singh identified this accused. Thus, the identification made by the witnesses of this accused in court was not corroborated by the identification, if any, made during test identification parade. Naranjan Singh, PW-8, no doubt identified him and from this it could only be inferred that he boarded the taxi. But that circumstance alone will not go to implicate him for the offence of robbery or dacoity. Two other circumstances were pitched against Sarab Raj, and these are the shoes that fitted him and his absence from the school. In our opinion, these two circumstances were also of not any compelling effect and could not be availed of to give a categorical finding that Sarab Raj took part in the commission of the offence. As regards Surjit Singh, in the test identification parades he was not identified by any one. It was stated that he beat Rup Lal, PW-49 with his Kirpan, but curiously enough there is not one injury of Kirpan or Drat on the person of Rup Lal. This is so evident from the nature of injuries as described by the Doctor. It appears Drat and Kirpan were never used and Rup Lal, PW-49. although assaulted during the course of dacoity either mistook the weapons or was assaulted in an entirely different manner than stated by him. At any rate, Surjit Singh could not be indicted for beating Rup Lai because he never caused any injury to him by Kirpan. In fact, Rup Lal, PW-49 stated that it was Sarab Raj who caused him injury. Sarab Raj was obviously not armed with Kirpan or Drat. He was rather armed with pistol and hence there is some confusion in the statement of Rup Lal when he stated that Sarab Raj caused the Kirpan injury on his person. The other two circumstances against Surjit Singh availed of by the prosecution were the shoes that fitted him and the circumstance of his having boarded the taxi of Naranjan. Singh. As we have stated before, these two circumstances alone will not be sufficient to implicate him with the offense. We have been left with the respondent Sohan Singh and it was stated that this accused was armed with Drat and he also snatched Rs. 4 from Brij Lal. Singh. As we have stated before, these two circumstances alone will not be sufficient to implicate him with the offense. We have been left with the respondent Sohan Singh and it was stated that this accused was armed with Drat and he also snatched Rs. 4 from Brij Lal. He is stated to have beaten Rup Lal, PW-49, Sohan Singh was not identified by any witness during test identification parade. In that connection it was submitted by the learned counsel for the State that Sohan Singh had refused to be identified. In fact his test identification parade took place on 9th May, 1968 which was clearly after two months of his arrest. Since the test identification parade was inordinately delayed, perhaps the accused was under the impression that he would be easily identified by the witnesses. In those circumstances, he may have refused to be put up for identification. It is no doubt true that a refusal to be identified will not go to raise an inference against the prosecution that this accused was not put up in a test identification parade, and hence his identification in court should not be relied upon. At the same time, we cannot ignore the circumstance that a test identification for this accused took place two months after his arrest. It is always valuable and verily it is necessary to avoid any ariticism in that regard, that test identification parades are held as early as possible after the arrest of the culprits. If any unnecessary delay is occasioned in setting up a test identification parade, a certain inference can be drawn against the prosecution. In our opinion, Sohan Singh respondent was justified to refuse his test identification in the circumstances. For the reasons stated above, his bare identification during the proceedings in court will not be sufficient. The other circumstance regarding the weapon used by him for attack upon Rup Lal and the nature of injury received decidedly belies the prosecution case that he took part in the beating given to Rup Lal The other circumstance of Sohan Singh having gone in the taxi of Naranjan Singh will not be sufficient to implicate him in the offence. 15. The upshot of all that we have stated above is, that except Roop Singh respondent the two offences could not be imputated against any of the other accused. 15. The upshot of all that we have stated above is, that except Roop Singh respondent the two offences could not be imputated against any of the other accused. As such we dismiss the appeal in respect of the other respondents. Since we have allowed the appeal in respect of Roop Singh respondent we convict him for the offence of robbery under section 392 of the I.P.C. and sentence him to undergo rigorous imprisonment for seven years. This respondent was served with notices according to rules but he chose to remain absent at the time of the hearing of the appeal. Since Roop Singh has been convicted, a non-bailable warrant shall be issued against him so that he surrenders and serves out his sentence. -