Judgment P.N. Goel, J. 1. PARTICIPATION of appellants Abdur Rahman and Ram Prasad in the dacoity committed in the night intervening 6th and 7th December, 1975 in the houses of Polo Singh, Pratap Ram and Tika Ram in village Bagzala within police station Haldwani, district Nainital rests on the evidence of identification. 2. THE appellants were arrested by the police and put up for test identification on 11 2 1978. THE identification proceedings were conducted by Sri M. K. Chaturvedi, Magistrate (PW 19). Both the appellants were identified by several witnesses. Out of them the prosecution examined Tika Ram, Nand Ram, Kamal Ram, Km. Hansa, Mohan Rai, Pratap Ram and Polo Singh (PWs 1, 2, 3, 4, 5, 6 and 11). Tika Ram and Kamal Ram are real brothers. Km. Hansa is daughter of Tilak Ram. On an appraisal of the evidence of the above-named witnesses, the Additional Sessions Judge found that there was good evidence of identification of Polo Singh, Kamal Ram and Tika Ram against Abdur Rahman and that there was good evidence of identification of Pratap Ram and Km. Hansa against Ram Prasad. 3. POLO Singh identified only one suspect correctly and committed one mistake. Therefore, he cannot be considered a good identifying witness. The Additional Sessions Judge himself mentioned that the performance of POLO Singh was 50%. Therefore, the identification of POLO Singh cannot safely be accepted. In this way there remains the evidence of only 2 witnesses Tika Ram and Kamal Ram against Abdur Rahman. 4. AS against Ram Prasad there is evidence of two witnesses Km. Hansa and Pratap Ram. Reliance cannot be placed on the testimony of Km. Hansa, Tika Ram and Kamal Ram. There are two rooms in the house of Tika Ram, Kamal Ram and Km. Hansa. On the night of occurrence Tika Ram, Kamal Ram and other male members of their family were sleeping in the bigger room. To the east of this room, there is a small room in which Km. Hansa and her sisters were sleeping. A lantern was burning in the bigger room. There was no lantern or lamp in the smaller room of Km. Hansa. Km. Hansa has wrongly stated that there was a lamp burning in the smaller room in which she was sleeping. 5. IT is evident from the statements of these witnesses that the lantern's light was not bright. A lantern was burning in the bigger room. There was no lantern or lamp in the smaller room of Km. Hansa. Km. Hansa has wrongly stated that there was a lamp burning in the smaller room in which she was sleeping. 5. IT is evident from the statements of these witnesses that the lantern's light was not bright. Tika Ram has purported to state that while going to sleep, the light of lantern is diminished to the extent that the articles in the room are visible. Km. Hansa also clearly stated that the light of the lantern was less. IT is thus clear that the light of the lantern was not sufficiently bright. 6. ANOTHER fact which has been admitted by Km. Hansa and Kamal Ram is that all the dacoits were covering their heads and faces with clothes, and that eyes and half of the nose only of the dacoits were open. If this is the position then obviously Km. Hansa, Kamal Ram and Tika Ram had not marked the features of the dacoits to enable them to identify the dacoits in the test identification parade. In the result, no reliance can be placed on the testimony of Tika Ram, Kamal Ram and Km. Hansa. 7. PRATAP Ram identified Abdur Rahman and Ram Prasad in the test identification proceeding. In examination in chief before the Additional Sessions Judge he identified them ; but in cross-examination he clearly stated that he was not sure whether Abdur Rahman was amongst the dacoits at the time of occurrence. This part of his statement even taints his identification of Ram Prasad. 8. IN the result, there is no good evidence of identification which may constitute the basis of conviction of the appellants. At the end, it has firstly to be remarked that on account of the injuries sustained in the occurrence Smt. Basanti Devi, wife of Pratap Ram died. She died on 17 12 1975 at 8-45 a. m. Postmortem examination on her body was conducted on the same date at 1.10 p. m. Therefore, the Additional Sessions Judge was not justified in saying that the dacoits were not guilty of the offence u/Sec. 396 IPC. 9. IT has further to be remarked that the prosecution did not lead any evidence as to the date and time of the arrest of Abdur Rahman. 9. IT has further to be remarked that the prosecution did not lead any evidence as to the date and time of the arrest of Abdur Rahman. The statement of Munnoo Singh Head Constable (PW 12) shows that Ram Prasad appellant was arrested on 12 12 1975. He has not stated at what time he was actually arrested. In this connection the defence of the appellants has to be borne in mind. Their defence is that they were shown to the prosecution witnesses after their arrest, by the police. IT is the duty of the prosecution to prove that since the time of arrest upto the time of admission in jail the suspects should not be shown to the prosecution witnesses and every care should be taken to keep them under cover. Therefore, to obviate the defence like the one taken by the appellants, it is the duty of the prosecution to prove affirmatively the time of arrest of the suspects. In this case the prosecution completely failed in its duty in this behalf. 10. BOTH the appeals are allowed and the conviction and sentence of the appellants under section 395 IPC recorded by III Additional Sessions Judge, Nainital are set aside. The appellants are acquitted of the charges levelled against them. Abdur Rahman is on bail. He shall not surrender. His bail bonds are discharged. 11. RAM Prasad is in jail. He shall be set at liberty forthwith unless required in connection with any other case. 12. A copy of this order shall immediately be sent to the court below as well as to the Superintendent Jail concerned. Appeals allowed.