JUDGMENT N.N. Sharma, J. 1. Both these appeals are being disposed of by this common judgment as these arise out of the same judgment by Sri J.N. Tandon learned Addl. Sessions Judge, Mainpuri in Sessions Trial No. A 70 of 75 by which appellants were convicted under section 395 IPC; each appellant was sentenced to five years R.I.; co-accused Munshi and Ram Awatar were acquitted by the same order. 2. Prosecution story briefly stated is that on the dead of night in between 25th and 26th September 73 a gang of bandits about 13 or 14 in number equipped with firearms, axes raided the house of Hawaldar Singh PW 4 situated in Nagla Tijan hamlet of village Bhure Bharthra. This house of Hawaldar has been shown in site plan Exh. Ka. 10 towards north west of the house of informant Tulsi Ram PW 1. Hawaldar was sleeping under the thatch of the house with a child and his licensed gun under the thatch in front of his eastern door; there is also another thatch in front of his northern door. A lane intervened in between his house and the house of informant etc. Bandits belaboured Hawaldar and looted his gun; Hawaldar's wife raised alarm when their property including cash amounting to Rs. 120/-and two silver anklets were looted ; thereafter dacoits entered the house of Sri Ram uncle of informant which lies towards south-east of the house of Hawaldar and is inhabited by Tulshi Ram, Sri Ram etc. Informant was lying at that time at a distance from this house in open land towards west. House of Narain Singh lies in between the house of Sri Ram and the place where informant was lying. A lantern was burning outside the house of Narain Singh etc. at a place towards west not shown in site plan; a lantern and lamp were also burning inside the house. The places of the lanterns have not been shown in site plan. The inmates of the house woke up on hearing the barking of dogs and saw the bandits who ransacked the house and some of them climbed the roof and fired shots. Smt. Barbati wife of informant and his cousin Vidya Ram PW 3 were belaboured by dacoits; Dacoits were also coming in and going forth while the crime was in progress. Smt. Barbati wife of informant and his cousin Vidya Ram PW 3 were belaboured by dacoits; Dacoits were also coming in and going forth while the crime was in progress. Witnesses who thronged near the house of informant on the hue and cry of the inmates saw the dacoits in the light of lantern and torches. After commission of dacoity dacoits decamped towards south. On account of shots none could chase them. After the departure of dacoits informant and other witnesses entered the house and checked the looted property. Informant prepared written report Exh. Ka 1 at about 2.30 A.M. or so which was scribed by Jaswant Singh Pradhan. It was made over at Police Station Sirsaganj on the next morning at 7.30 A.M. Distance of Police Station from scene of occurrence was five miles. On the basis of written report Exh. Ka. 1 FIR Exh. Ka. 9 was drawn by Clerk Constable Chandra- vir Singh who registered the case in General Diary vide Exh. Ka. 20. Investigator Sri Ramadhin Singh PW 12 happened to be present at the Police Station when FIR was drawn. He took up Investigation forthwith. Informant Sri Ram etc. were interrogated; injured Narain Singh, Sia Ram and Hawaldar (?) Dispensary. Investigator reached the scene of occurrence in the same morning at 10. 30 A. M. and inspected the spot. From the spot he recovered 38 fired cartridges vide memo Exh. Ka. 11, wife of Hawaldar produced the Lantern which was entrusted to her vide entrustment memo Exh. Ka. 12. Investigator also saw lantern and lamp which were alleged to have been burning inside the house of Sri Ram at time of occurrence; these were found in working order. Torches of Hub Lal, Nathoo, Ram Dayal, Raja Ram were also examined by investigator and found in working condition and returned to their respective owners vide entrupstment memo Exh. Ka. 13. Hub Lal, Nathoo, Ram, Saraman, Raja Ram, Ram Dayal, Vidya Ram were interrogated. 3. Ram Awatar, Sri Kishan and Lalloo along with three others were arrested on the night of 11th and 12th October 73 from the old brick kiln situated in Nagla Khara Bani; they were brought to Police Station by S.O. Sri Shishu Pal Singh Malik PW 7 and placed in lock up; they wetre sent to District Jail Mainpuri under Pardah. Ram Awatar, Sri Kishan and Lalloo along with three others were arrested on the night of 11th and 12th October 73 from the old brick kiln situated in Nagla Khara Bani; they were brought to Police Station by S.O. Sri Shishu Pal Singh Malik PW 7 and placed in lock up; they wetre sent to District Jail Mainpuri under Pardah. Basti RAM appellant surrendered in court on 29-1-74 and was lodged in District Jail Mainpuri under Pardah on the same day. 4. Sri G.D. Maheshwari Executive Magistrate PW 6 conducted test identification parade of Ram Awatar, SRI Kishan, Lalloo, Munshi in District Jail Mainpuri on 29-11-73. Munshi was correctly identified by J Nathoo Ram, Vidya Ram, Raja Ram, Tulsi Ram, Hawaldar and Hub Lal. Ram Awatar was correctly identified by Nathoo Ram, Vidya Ram. 5. Lalloo was correctly identified by Nathoo Ram, Vidya Ram, Raja Ram, Tulshi Ram, Hawaldar, Hub Lal. 6. Sri Kishan was correctly identified by Nathoo Ram, Vidya Ram, Raja Ram, Tulshi Ram, Hawaldar, Hub Lal. Basti Ram was put up for identification by Sri V.P. Gupta Executive Magistrate PW 10 in District Jail Mainpuri on 5-3-74. He was correctly identified by Tulshi Ram, Nathoo Ram, Hawaldar, Babu Ram and Hub Lal. 7. It appears that Tulshi Ram picked up three accused correctly but committed two mistakes also. 8. Nathoo Ram picked four accused correctly but committed one mistake. Vidya Ram picked four accused correctly and made one mistake. 9. Hawaldar picked up three accused correctly but committed two mistakes. 10. Hub Lal PW 5 picked up three; accused correctly and committed no mistake. Thus performance of Vidya Ram; and Hub Lal was very good. The fired cartridges seized from the spot were sent for comparison to ballistic expert Sri R.P. Rastogi PW 15 through constable Balwant Singh etc. PWs. 16 to 18. Ballistic Expert opined that these cartridges were fired with the licensed gun of Munshi. 11. On completion of investigation police submitted charge-sheet against the appellants to stand their trial. 12. In their statements appellants denied their participation in dacoity. Munshi stated that S.O. Sri Mallik arrested him from his field and had shown him to witnesses at Police Station Koraoli. He further alleged that his photo affixed in his gun licence was shown to the witnesses which facilitated his identification. 13. 12. In their statements appellants denied their participation in dacoity. Munshi stated that S.O. Sri Mallik arrested him from his field and had shown him to witnesses at Police Station Koraoli. He further alleged that his photo affixed in his gun licence was shown to the witnesses which facilitated his identification. 13. Sri Kishan stated that he was not arrested at the time and place alleged by prosecution; he was shown to witnesses who knew him from before also. 14. One Satya Shil is his Mausa and appellant used to sit at his flour machine about 7 or 8 years prior to his statement and so his face was familiar to the identifiers. Lalloo appellant stated that police arrested him from his house and had shown him to the witnesses at Police Station Koraoli. He was photographed there. 15. Ram Awatar stated that police arrested him from his village Meura from the house of his sister Urmila and had shown him to witnesses at Police Station Karaoli where his photo was also obtained. Basti Ram stated that he had not absconded and surrendered in court. His sister was married with Pratap Singh's brother in village Burla Bharthra and so the witnesses who identified him knew him from before on account of aforesaid relationship. 16. Prosecution in support of their case examined 18 witnesses. Testimony of indentifiers consisted of statements of Tulshi Ram PW 1, Nathoo Ram PW 2 and Vidya Ram PW 3, Hawaldar PW 4, Hub Lal PW 5. In defence appellants examined Assistant Jailor Sri Babu Ram DW 1, Sri Ram DW 2, Satyasil DW 3, Pradeep Singh DW 4, Ram Sanehi DW 5 and Babu Ram Katiyar DW 6, Amrit Singh DW 7, Kesho Singh DW 8, Hukum Lal Pandey DW 9. 17. Learned trial Judge believed the factum of dacoity which was not challenged on behalf of appellants even before me. Informant did not stand to gain by lodging a report without nomination of any appellant in this crime. The seizure of cartridges on the spot and the injuries sustained by Narain Singh and Sia Ram and Hawaldar as evidenced by injury reports Exhs. Ka. 21 to Ka 23 respectively provided a clinching evidence about the armed dacoity which is alleged to have taken place at the house of Hawaldar and Sri Ram etc. as testified by PWs. The seizure of cartridges on the spot and the injuries sustained by Narain Singh and Sia Ram and Hawaldar as evidenced by injury reports Exhs. Ka. 21 to Ka 23 respectively provided a clinching evidence about the armed dacoity which is alleged to have taken place at the house of Hawaldar and Sri Ram etc. as testified by PWs. 1 to 5 who were rightly believed on this point by learned trial Judge. 18. Sri Devendra Swarup learned counsel for the appellant Basti Ram pointed out that participation of Basti Ram in this crime was not made out. No incriminating article was recovered from possession of Basti Ram nor was he arrested on the spot and the identification evidence as adduced by prosecution was not reliable. It appears that learned trial Judge: did not find identification evidence of Nathoo Ram PW 2 and Vidya Ram PW 3 as: cogent to record a conviction of Ram Awatar who was acquitted; similarly the evidence of identification was disbelieved against Munshi; even investigation against Munshi was held as tainted inasmuch as the evidence about the use of his gun during the commission of this dacoity was disbelieved. Thus as regards the appellants it has to be seen whether the conviction and sentences of appellants are sustainable on identification evidence alone. 19. While appreciating the identification evidence question of light and opportunity for observation of dacoits by identifiers assume importance. As the occurrence of dacoity took place during night so the question of light is to be carefully scrutinised. To my mind Hawaldar PW 4 had the best opportunity for identification of dacoits because he was belaboured by them and his gun was snatched by them. He testified that on that midnight he was sleeping with a child under the thatch in front of his door. The dacoits overshadowed him and began to snatch his gun after torturing him. The bandits entered his house and began to plunder his property. On his outcry Ghasi Ram, Nathoo Ram, Raja Ram, Ram Dayal, Hub Lal arrived. Thereafter, bandits entered the house of Sri Ram, Hub Lal, Nathoo Ram, Ram Dayal and Raja Ram flashed torches. Sarman also carried a lantern. They flashed the torches on dacoits. Dacoits plundered the property of Sri Ram for one hour. The number of dacoits was ten or twelve; they carried guns, pistols and axes. Thereafter, bandits entered the house of Sri Ram, Hub Lal, Nathoo Ram, Ram Dayal and Raja Ram flashed torches. Sarman also carried a lantern. They flashed the torches on dacoits. Dacoits plundered the property of Sri Ram for one hour. The number of dacoits was ten or twelve; they carried guns, pistols and axes. A lantern was burning on his door. He was belaboured by lathis. The dacoits ran away towards south of the house of Sri Ram. He claimed to have seen them in the light of lantern and torch. 20. It is significant to note that in site plan Exh. Ka. 10 his cot has been shown by digit 7 under the thatch in front of his northern door. In his statement Hawaldar alleged that he was sleeping under the thatch in front of his eastern door and not in front of his northern door; no mention of lantern with Sarman was made in written report Exh. Ka 1; no mention of the burning of lantern at door of Hawaldar was made in that report nor the place where the lantern was burning has been shown in the site plan Exh. Ka. 10 or in entrustment memo Exh. Ka. 13. He further testified that he kept lying on his: cot when dacoity took place at his house. The lantern was hanging on a peg in (front of his door as usual. IT remained in the same position up to the arrival of the investigator but he is not borne out on this point by investigator. He had no opportunity to see the docoits while lying on cot when they were looting the property of Sri Ram. According to him he remained lying on cot when the house of Sri Ram was being looted. He did not tell the description of any dacoit to investigator at the time of interrogation. I have already given above that the performance of this witness was bad as he picked up three accused correctly but committed two mistakes. According to him he remained lying on cot when the house of Sri Ram was being looted. He did not tell the description of any dacoit to investigator at the time of interrogation. I have already given above that the performance of this witness was bad as he picked up three accused correctly but committed two mistakes. As regards the identifier Nathoo Ram P. W. 2 and Vidya Ram P. W. 3 it was observed by learned trial Judge that Nathoo Ram had not good opportunity to have seen the dacoits; no sufficient light could have been available to him ; similarly testimony of Vidya Ram P. W. 3 was not relied upon by him while dealing with the identification evidence against Ram. Awatar. Under these circumstances it is difficult to believe that the same identifiers could be reliable against these appellants. I may briefly touch the testimony of Vidya Ram P. W. 3 whose performance was alleged as excellent. Vidya Ram P. W. 3 testified that on that night he was sleeping inside his courtyard. His mother etc. were also sleeping there. A lantern was burning hanging by the peg in front of the room. That place has not been shown in the site plan Exh. Ka. 10 nor there is any corroborative evidence on this point. As regards the burning of the lamp he alleged that it was burning in the house of Tulshi Ram and Babu Ram in the niches; he saw 10 or 12 bandits; some were on the roof. The dacoits remained in his house for about one hour; he also alleged that one dacoit dealt lathi blow on him but he did not get himself, medically examined to corroborate his version. He claims to have recognised the dacoits in the light of the lantern, lamp and torches. It has been shown above that such light could not have been available to him in the courtyard of the house as he alleged that the lamp was placed in the western wall of the room of Tulshi Ram in a niche and another lamp was burning inside the room of Babu Ram. A mere casuall look at site plan Exh. Ka. 10 goes to show that the light of such lamps could not have enlightened any person lying in the courtyard. 21. A mere casuall look at site plan Exh. Ka. 10 goes to show that the light of such lamps could not have enlightened any person lying in the courtyard. 21. He further stated that thatches in front of rooms of Tulshi Ram and Sri Ram were fixed and the eaves of the thatches was 4-5 ft. high. The informant etc. went to lodge a report at about 2 A.M. or so. Thus on the basis of this statement it was pointed out that the lodging of report after 7 A.M. was indicative of deliberations and confabulation on the question of light etc. 22. Tulshi Ram informant P. W. 1 is a bad identifier. He picked three suspects correctly but committed two mistakes. He was lying in the open at place shown by digit 2 in site plan Exh. Ka. 10. He was awakened when house of Hawaldar was looted. He mentioned; about the burning of lantern outside the door. This allegation is not borne out by site plan aforesaid in which no place of the burning of that lantern was shown. He was away from the house of Hawaldar. He was also away from houses of Tulshi Ram and Sri Ram which was looted by bandits in that night and so his statement that inside the houses of Sri Ram or Tulshi lantern and lamp were burning was simply hearsay when he did not enter the. house at the time of commission of dacoity and did not see dacoits in that light. He simply testified that dacoits belaboured his wife Smt. Parwati and his cousin Vidya Ram but he himself was out of the house. Under such circumstances his identification has no weight. He again alleged that initially he kept lying on his cot but got up and stood at distance of 20 steps from the house of Hawaldar. The place where he stationed at that time has not been shown in the site plan Exh. Ka. 10. Thus he had little opportunity to have observed the features of dacoits. He conceded that he knew Daya Ram and Pratap Singh but denied to have seen Basti Ram at their houses. Nathoo Ram has already beam disbelieved by learned trial Judge as it was mentioned that he had no opportunity for identification. Hub Lal PW 5 is also a good identifier. He conceded that he knew Daya Ram and Pratap Singh but denied to have seen Basti Ram at their houses. Nathoo Ram has already beam disbelieved by learned trial Judge as it was mentioned that he had no opportunity for identification. Hub Lal PW 5 is also a good identifier. He claimed to have seen the dacoits from a distance while houses of Hawaldar and Tulshi Ram were being looted. He alleged to have reached the entrance of Tulshi Ram where shots were being fired by dacoits. This allegation looks improbable as such course was fraught with grave risk and investigator in site plan Exh. Ka. 10 did not assign him the place in front of the house of Tulshi Ram but at a distant place towards north behind the Chaupal of Raja Ram. He claimed to have flashed torch. Nathoo Ram, Raja Ram and Ram Dayal were also there. Sarman had a lantern. This was an obvious improvement. 23. He conceded that he was not a natural witness of the locality and lived at a distance of 50 steps from the houses of Hawaldar and Tulshi Ram. He did not give the description of any dacoit at the time of his interrogation. It was pointed out that before watchman he told that he could not recognise anyone in dacoity. Learned trial Judge tried to explain away this statement in his judgment. 24. Thus on the aforesaid testimony it is obvious that these identifiers had no good opportunity or sufficient light for identification of dacoits and so their testimony does not inspire confidence against appellants, also. Evidence of identification based upon personal impression of identifiers which is relevant under Section 9 of Indian Evidence Act does call for caution before acceptance. Some of the most tragic miscarriage of justice have been made due to testimonial errors in this field. Prof. Wigmore observed in his principles of Judicial Proff:- "It calls for caution, in that testimonial assertions to identify must be accepted only after the most careful consideration. On the one hand the process of recognition being often more or less sub-conscious, it may be quite correct, even though no specifications of marks can be given/as reasons for recognition. Prof. Wigmore observed in his principles of Judicial Proff:- "It calls for caution, in that testimonial assertions to identify must be accepted only after the most careful consideration. On the one hand the process of recognition being often more or less sub-conscious, it may be quite correct, even though no specifications of marks can be given/as reasons for recognition. On the other hand the risk of injustice being so serious, the great possibilities of lurking error should cause hesitation and the investigator should seek to establish as many marks as possible that may serve circumstantially to check the testimonial assertions. At this point there may be a logical value in number of witnesses. The process also calls for precaution in taking measures before hand objectively to reduce the chances of testimonial error. (i) At the time of original observation, the investigator should obtain from the observer a note of any marks of the personality observed so that there will be less need to depend later on the observers momory. (ii) At the time of presenting for recognition whether upon arrest or trial in the court room measures should be taken to increase the stimulus of association and to decrease the risk of false suggestion-(A) the persons to be identified should be clothed and placed 'so far as feasible' in the same condition as when originally observed. (B) The person to be identified should be presented in company with a dozen others of not too dissimilar personality." 25. As I perused the statement of investigator Shri Ramadhin Singh PW 12 I did not find that he interrogated PWs 1 to 5 to ascertain the marks or stature like colour or features of dacoits so as to render testimony of identifiers cogent and dependable. In Anwar v. State, 1961 Cr LJ 25 it was pointed out: "When the witnesses were interrogated by the investigating agency, they again failed to give any description of dacoits. Obviously the investigating agency must have interrogated these witnesses with a view to trace out the offenders and they must have questioned the witnesses about the features of dacoits. In Anwar v. State, 1961 Cr LJ 25 it was pointed out: "When the witnesses were interrogated by the investigating agency, they again failed to give any description of dacoits. Obviously the investigating agency must have interrogated these witnesses with a view to trace out the offenders and they must have questioned the witnesses about the features of dacoits. If inspite of such questioning the witnesses could not give any description, it only presents two possibilities (1) the dacoits were not well seen and therefore the witnesses could nor give any description in view of the light that existed or due to encounter etc." In Pirthi v. State, 1966 Cr LJ 1370 it was held: "Where the test identification parade takes place after a number of months, there should be some special reason, such as some marked peculiarity in the features of the suspect which had been described before hand (italicised by me) by the identifying witnesses in order to inspire confidence in evidence of identification." 26. Learned trial Judge has acquitted Munshi on the ground that he was suspicious about the conduct of investigating agency. The moment the courts find that investigation is tainted it has to be on its guard. While small delinquency may not destroy the evidence of identification but where there were major delinquencies and the investigation is tainted it would be against the rule of prudence to accept the evidence of identification. So, for the aforesaid reasons the identification evidence as discussed above has to be discarded. In the result both the appeals are allowed. The conviction and sentences recorded by the learned trial Judge are set aside and the appellants are acquitted of the charge under Section 395 IPC. They are on bail. They need not surrender. Their bail bonds are discharged. Appeals allowed.