Judgment P.N. Goel, J. 1. NARESH, appellant, resident of village Jalalpur, Police Station Bisauli, district Budaun, has been convicted under Sec. 395 IPC and sentenced to undergo R.I. for 5 years for having participated in a dacoity committed by a gang of about a dozen bad characters in the houses of Ram Prakash (PW3) and Ram Swarup, father of Maharaj Singh (PW 2) in village Karanpur within police station Bilsi, district Budaun on the night intervening 11th and 12th January 1973 at about 10-11 P.M. 2. THE appellant was arrested on 5-4-1973 by Adya Prasad Tiwari S.I. (PW 8) from his village and taken to police station Bisauli. From police station Bisauli, Dalchand constable escorted the appellant on that day to District Jail, Budaun. On 31-5-1973, the appellant was put up for test identification. THE identification proceeding was conducted by Sri N.N. Varma, Magistrate (PW6). THE appellant was identified by Shyam Lal (PW 1) father of Ram Prakash, Maharaj Singh and Ram Prakash. There was a lantern burning at the verandah inside the house of Ram Prakash. Shyam Lal (PW 1) was sleeping in the verandah. He was, therefore, able to see the dacoits very well. Ram Prakash ran out of his house and Maharaj Singh also ran from his house. They stood in a narrow street to the west of the house of Brijpal which is to the south of the house of Shyam Lal and Ram Prakash, with a narrow street in between and to the south each of the house of Ram Swarup. THE house of Ram Swarup is to the west of the house of Ram Prakash. Some open land is between these two houses. THE house of Ram Prakash faces east. After having committed dacoity in the house of Ram Prakash, the dacoits went towards south and then towards west through the street which is between the houses of Ram Prakash and Brijpal and thereby reached the house of Ram Swarup and after having committed dacoity in the house of Ram Swarup, the bad characters bolted away towards north. THE light of lantern which was burning inside the house of Ram Prakash was not available to Maharaj Singh and Ram Prakash. At the place where Ram Prakash and Maharaj Singh were standing at the time of dacoity, there were other village people. THE light of lantern which was burning inside the house of Ram Prakash was not available to Maharaj Singh and Ram Prakash. At the place where Ram Prakash and Maharaj Singh were standing at the time of dacoity, there were other village people. THEse village people had two torches, one was with Maharaj Singh and the other with Hira Lal. At north-eastern corner of the house of Brijpal some straw was burnt. According to Maharaj Singh and Ram Prakash they saw the dacoits in the light of torches and the fire of burning straw. It is obvious that Maharaj Singh and Ram Prakash could not see the dacoits when they were committing dacoity in the house of Ram Swarup and when they were bolting away from the house of Ram Swarup towards north. The III Additional Sessions Judge Budaun who tried the case did not accept the identification of Shyam Lal. On the date on which the appellant was put up for test identification three other suspects were also put up. Shyam Lal picked up three persons correctly and committed one mistake. On this ground the Additional Sessions Judge did not accept his testimony. The Additional Sessions Judge however, believed the evidence of Maharaj Singh and Ram Prakash and convicted the appellant. 3. AT the outset it has to be remarked that the learned Additional Sessions Judge was not justified in not accepting the identification of the appellant by Shyam Lal. His performance was 75 percent correct. This performance on the very face is a good one. It is not expected that a witness should be able to identify all the suspects and then only his identification could be characterised as good. 4. BESIDES, in the instant case Shyam Lal had every occasion and time 1:o mark the features of the dacoits because he was inside the house and a lantern was burning quite close to him. Therefore, identification by Shyam Lal so far as the appellant is concerned, should have been accepted by the court below. The main question is whether Maharaj Singh and Ram Prakash had sufficient light and opportunity to mark the faces of the dacoits to enable there to pick up in the test identification proceeding. In this connection it has to be assessed from what distance they had seen the dacoits. 5. The main question is whether Maharaj Singh and Ram Prakash had sufficient light and opportunity to mark the faces of the dacoits to enable there to pick up in the test identification proceeding. In this connection it has to be assessed from what distance they had seen the dacoits. 5. FACTS relevant for consideration are as follows : (1) Maharaj Singh and Ram Prakash both have stated that the dacoits were going in and coming out of the house of Ram Prakash. It means that the dacoits were not standing out-side the house of Ram Prakash throughout the dacoity. Therefore, it may easily be presumed that the appellant must also be going in and coming out of the house of Ram Prakash throughout the period of dacoity at the house of Ram Prakash. (2) Maharaj Singh first of all stated that he saw the dacoits in the light of torches and burning fire, but later on, in examination-in-chief, he stated that he saw the dacoits in the light of fire. Ram Prakash stated that he saw the faces of the dacoits in the light of fire and torches. It is positively certain that Maharaj Singh and Ram Prakash were to the south of the place of fire. The place of fire is to the south of the door of the house of Ram Prakash. In this way it is patent that there was light of fire between the place of these witnesses and the door of the house of Ram Prakash. In this situation it is extremely doubtful that the light of torches would have fallen on the faces of the dacoits when they were going in and coming out of the house of Ram Prakash because the flames of the fire would obviously intervene. Thus the position is that the light of torches was not of help to these witnesses. (3) As the fire was burning between the door of the house of Ram Prakash and the place of the witnesses, it is not easily possible/probable for the witnesses to mark the features of the dacoits because of the glare of the fire. The flames must be rising high. (4) Maharaj Singh clearly stated that he was at a distance of 40 paces from the dacoits when he saw them. Ram Prakash was close to him. The flames must be rising high. (4) Maharaj Singh clearly stated that he was at a distance of 40 paces from the dacoits when he saw them. Ram Prakash was close to him. It means that both these witnesses were at a distance of 40 paces from the dacoits. One pace is equivalent to two and a half feet. It means that the witnesses were at a distance of about 100 feet = 33 yards from the dacoits. Hans Gross in his book "Criminal Investigation" edited by J. and J. C. Adam, Vth edition published in the year 1962 at pages 159 160 observed that if the eye sight is normal and the light good, one is able in broad-day-light to recognize ; (a) persons whom one knows very well, at a distance of from 50 to 90 yards ; when there are particular and very characteristic signs, 110 yards; in exceptional cases up to 165 yards,-(b) persons one does not know very well and has not often seen, from 28 to 33 yards,- (c) people one has only seen once, 16 yards. The case of the appellant does not fall within clause (a). His case can only fall in clauses (b) and (c). Therefore, a person is ordinarily able to recognise an unknown person in broad day light from a distance of 28 to 33 yards. 6. THE learned counsel for the State urged that the observation of Hans Gross cannot be absolute and he relied on the case of Budhsen v. State of U. P., AIR 1970 S. C. 1321. It was a murder case. Two appellants were put up for test identification. It was observed in Para 7 : "Now, facts, which establish the identity of an accused person are relevant u/Sec. 9 of the Indian Evidence Act. As a general rule, the substantive evidence of a witness is a statement made in Court. THE evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. THE evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. THE evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. THE purpose of a prior test identification, therefore, seems to be to test and strengthen trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the accused who are strangers to them, in the form of earlier identification proceeding....................THE identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bonafides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in Court. Identification proceedings, in their legal effect amount simply to this, that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162, Criminal Procedure Code. It is for this reason that the identification parades in this case seem to have been held under the supervision of a Magistrate. Keeping in view the purpose of identification parades the Magistrate holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error........THE power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seem to be of basic importance in the evaluation of identification. THE persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. THE identification to be of value should also be held without much delay. THE number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. THE identification to be of value should also be held without much delay. THE number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. THE evidence as to identification deserves, therefore, to be subjected to a close and careful scrutiny by the Court." There is no dispute to the above observations. The learned counsel for the State has particularly relied on the test portion of the above observation. He has contended that the appellant was sent to jail from another police station on the very day of his arrest and there was nothing to show that the identification proceeding was in any way tainted. He urges that the identification of the appellant by the two witnesses should be accepted as a piece of corroborative evidence to the testimoney of the witnesses given in Court. 7. THE evidence of the witnesses in court is substative evidence. If the witnesses make such statements in court which render their evidence less probable or unbelievable, the corroborative evidence will not carry that weight which it is supposed to. In the instant case, the evidence of the prosecution witnesses shows that they were at a distance from which it is not easily probable for a witness to mark an unknown person's features to enable him to recognise in a test parade. 8. IN this connection definition of the word "proved" in Section 3 of the Evidence Act has to be kept in mind. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. IN the present case, the witnesses saw the dacoits from a distance of 100 feet. Therefore, it is not probable that they were in a position to mark the faces or the features of the dacoits who were going in and coming out so as to enable them in a test parade held four months after the occurrence to identify. Taking into consideration all the above facts and circumstances, reliance cannot safely be placed on the identification of the appellant by Maharaj Singh and Ram Prakash. In the result the conviction of the appellant cannot be sustained. 9. Taking into consideration all the above facts and circumstances, reliance cannot safely be placed on the identification of the appellant by Maharaj Singh and Ram Prakash. In the result the conviction of the appellant cannot be sustained. 9. APPEAL is allowed and the conviction and sentence of the appellant under Section 395 IPC recorded by the Additional Sessions Judge are set aside. The appellant is on bail. He will not surrender. His bail bonds are discharged. APPEAL allowed.