Judgment M. P. Singh, J. 1. The eight appellants were tried and convicted for an offence under section 396, Penal Code for having committed dacoity with murder on the night of 21st and 22nd March, 1969 at about 1 a. m. in the house of P. W.2, Ram Lachhan Prasad Singh of village Sigri Murla within police station, Ramnagar in the district of Champaran and they were sentenced to rigorous imprisonment for ten years by the Third Additional Sessions Judge, motihari. The dacoits were about 15 to 16 in number and they used guns in commission of dacoity. Banaras Singh son of the informant Ram Lachhan prasad Singh (P. W.2) was killed by the dacoits by bullet shot at the time while they were retreating after commission of the dacoity. The accused denied guilt. A-8 is dead, A-1 to A-4 and A-7 have already served out their sentences of imprisonment. The remaining appellants are also about to complete their term of imprisonment. 2. Some of the appellants were identified only by one witness, others by two witnesses and some by three witnesses. It is not necessary to give details of identification in view of the point of law raised in this case. The strange feature of the case is that all the identifying witnesses turned hostile to the prosecution at the trial Not a single witness identified any appellant in the trial court. Counsel appearing for the appellants stressed that the evidence of identification is not substantive evidence and that it can be used only to corroborate or lend assurance to the identification made by the same witness in court. In my opinion he is right. They simply gave evidence at the trial that they had identified certain persons at the test identification parade. The fate of the case thus, depended entirely on the evidence of test identification parade. The trial court convicted them on the basis of that evidence. A question arises if the evidence of the test identification parade can form the legal basis for the appellants conviction. In my opinion, the answer must be "no" and the trial court was not right in convicting the accused persons simply on the basis of such evidence. The facts of the present case are governed by the principles laid down in Rama Gope V/s. The State, AIR 1950 pat 514 and Hasib v The State of Bihar. In my opinion, the answer must be "no" and the trial court was not right in convicting the accused persons simply on the basis of such evidence. The facts of the present case are governed by the principles laid down in Rama Gope V/s. The State, AIR 1950 pat 514 and Hasib v The State of Bihar. AIR 1972 SC 283 . In this case it was held that the evidence of the test identification parade is not legal evidence before the court and conviction cannot be sustained upon it. In the Supreme court case (supra) also the prosecution witness claimed to have identified the accused at the test identification parade but in the trial court he could not identify the accused as one of the dacoits whom he had seen at the time and place of the occurrence. It was observed :- "it is noteworthy that in the trial court the witness did not identify the appellant as one of the dacoits whom he had seen at the time and place of the occurrence. If that is so then the question arises if the evidence of the test identification parade can form legal basis for the appellants conviction. As observed by this court in Vaikuntam Chandrappa y. State of Andhra pradesh, AIR 1960 SC 1340 , the substantive evidence is the statement of a witness in Court and the purpose of test identification 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. Tf there is no substantive evidence about the appellant having been one of the dacoits when P. W.10 saw them on January 28, 1963 then the T. I. parade as against him cannot be of any assistance to the prosecution. " 3. In Sampat Tatyada Shinde V/s. State of Maharashtra, AIR 1974 SC 791 , it was observed :- "the evidence of test identification is. . . at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in court regarding identification of the accused as the doer of the criminal act. The earlier identification made by the witnesses at the test identification parade, by itself, has no independent value. . . . . at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in court regarding identification of the accused as the doer of the criminal act. The earlier identification made by the witnesses at the test identification parade, by itself, has no independent value. . . " It is clear that the substantive evidence which is to be given by the prosecution witness is that the accused was the doer of the criminal act. It is not enough for the witness to prove that he identified certain persons at the test identification parade. It is further necessary to say that those persons whom he identified at the test identification parade, were the doers of the crime. In the present case, not a single prosecution witness said that the accused whom ho identified at the test parade were the doers of the criminal act and that they had been identified by him during the commission of the dacoity at the place of the dacoity. What the prosecution witness said in court was that they had identified certain persons at the test identification parade and nothing more. None of them said that those persons had committed the dacoity. 4. Learned counsel appearing for the State of Bihar heavily relied on the case of Rahman Mian and others V/s. The State, (1953 BLJR 703 ). The case, in my opinion, does not help him, as will appear from the following observation made in that case :- ". . . otherwise, an answer was to be elicited from the witness at the trial that he had identified certain persons at the parade who were in the dacoity but whom he was not in a position then to identify in court. . . Accordingly, if I find from the evidence that the witnesses have made a statements from which an inference can be drawn that some of the accused whom they could not identify in court were identified by them at the test identification parade as those who were in the dacoity, I will be perfectly entitled to use the same against them. " On a perusal of this observation, it is clear that even in that case emphasis was laid upon the nature of evidence namely, that the witness must say that they had identified certain persons at the parade who were in the dacoity. " On a perusal of this observation, it is clear that even in that case emphasis was laid upon the nature of evidence namely, that the witness must say that they had identified certain persons at the parade who were in the dacoity. Some other decisions were also cited but I do not think it necessary to refer to them, as they are not to the point. In the present case there is complete absence of substantive evidence of the nature aforesaid, namely, that the persons who were identified at the test identification parade were amongst the dacoits during the commission of the dacoity. The evidence is only to this effect that the witnesses had identified certain persons at the test identification parade. Counsel for the State relied on the evidence of P. Ws.5 and 6. I have read it. I do not find that they said that the person whom they identified at the test identification parade, were the persons who had committed dacoity. In these circumstances, it must be held that there is no substantive evidence on the record on the basis of which the conviction of the appellants can be sustained. Before parting with the case I must say that though I feel morally convinced that these persons were the doers of the dacoity, I am unable to sustain their conviction for want of substantive evidence as abovesaid. 5 After having considered the arguments of the parties I hold that there is no legal evidence whatsoever on which a conviction can be sustained. The appellants are entitled to benefit of doubt. They are given the benefit of doubt and are acquitted. Their conviction and sentence are set aside and the appeal is allowed. I have already said that A-8 is dead and A-1 to A-4 and a-7 have already served out their period of sentence. Remaining four appellants, A-1,a-3, A-5 and A-6 must be released forthwith from jail custody, if not wanted, in any other case or cases. Appeal allowed.