DEBERA, J. ( 1 ) THESE appeals arise out of the same judgment and order of conviction recorded by the learned Assistant Sessions Judge, Baripada, against the appellants under section 395 of the Indian Penal Code sentencing each of them to undergo rigorous imprisonments for a period of nine years by accepting the case of the prosecution that during the night of March 9/10, 1982, the appellants, besides many others, being armed, entered the house of Sanatan Tudu (PW 1) at Tangasole in the district of Mayurbhanj and committed dacoity by causing hurt to the inmates and others and removing cash and other valuables. On the basis of the first information report (Ext. 1) lodged by PW 1, investigation followed and on its completion, the appellants, were prosecuted. To bring borne the charge to the appellants, the prosecution had examined eight witnesses of them, PW5. 1. 3 and 5 were the identifying witnesses. PW 8 had conducted the test identification parade. P W 1 had identified all the appellants in the court and at the test identification parade. P W 3 had identified the appellants Kunu Bhakta and Radha Bhakta in the court and at the test identification parade. P W 5, a farm servant of P W 1, had identified the appellant Kunu Bhakta both in the court and at the test identification parade. No incriminating articles or stolen articles had been recovered from the person or possession of any of the appellants. The case of the prosecution rested mainly on the evidence of P Ws. 1, 3 and 5 coupled with the fact that some of the appellants had superficial injuries on their persons as noticed by the doctor (PW 2 ). The learned Assistant Sessions Judge has accepted the case of the prosecution and recorded an order of conviction which has been assailed by the learned counsel for the appellants as unfounded on the evidence on record and my attention has been invited to the suspicious features in the evidence of these witnesses with regard to the identification of the culprits. Mr. Mr. A. Rath, the learned Additional Standing Counsel, has submitted that there and some unsatisfactory features in the evidence of PW 1 and 5 which have been pointed out by the learned counsel for the appellants which are not very material and there is the clear and cogent evidence of PW 3 with regard to the identification of two of the appellants, namely, Kunu and Radha. ( 2 ) IT is not disputed at the Bar that a dacoity had been committed in the house of PW 1 in which a number of persons received injuries It is, therefore, unnecessary to catalogue the evidence with regard to the commission of the offence placed before the trial court. As indicated earlier, the order of conviction bas been based on the evidence of PW5 1, 3 and 5. As regards PW 1. he had, no doubt, identified all the four appellants in the court and at the test identification parade, but no due notice had been taken by the trial court of the statement made by PW 1 himself that after the commission of the offence and their arrest, the appellants had been seen by him at the police station. On his own showing, the appellants had not been known to him from before. It has been a settled principle of law that in such a case, the identification of the culprits in the court should be tested by an earlier test identification proceeding and it had been so done in the instant case. But such identification would lose its value when the unknown persons said to be the culprits had been seen by the identifying witness prior to the identification proceedings. In this connect to reference may be made to a recent decision of the Supreme Court in Criminal Appeal No. 494 of 1976, Rab Das v. State of Orissa. arising out of the judgment and order passed by this Court in Criminal Appeal Nos. 16 and 37 of 1974, decided on January 21, 1976 in a case under section 396 of the Indian Penal Code. Their Lordships have observed: TI The only evidence recorded by the courts below against (he appellant is the evidence of the approver (PW 23) Sandara Saura and PW 10 and PW 12. 16 and 37 of 1974, decided on January 21, 1976 in a case under section 396 of the Indian Penal Code. Their Lordships have observed: TI The only evidence recorded by the courts below against (he appellant is the evidence of the approver (PW 23) Sandara Saura and PW 10 and PW 12. So far as PW 10 is concerned he did not identify the appellant at all ill the court and therefore his evidence is wholly irrelevant. So far as PW. 12 is concerned it is also admitted that he was shown the photograph of the appellant which ought not to have been done. This Court has pointed out so many times that when accused are unknown to the witnesses proper care should be taken to conceal their identity before the identification parade is held so much so that even if they are to be produced before the Court they had to be kept in parda. This rule applies in full force to the investigation held by the Investigating Officers. Thus, the identification of the appellant by PW 12 in the committing court as also in the trial court is of no legal value and there is absolutely no evidence against the appellant Their Lordships of the Supreme Court accordingly allowed the appeal. My attention has been invited to the statement made by the Investigating Officer that he had not taken steps to conceal the identity of the appellants prior to the test identification parade and when they were produced before the court for remand after they were arrested. Thus as contended on behalf of the appellants, PW 1, 3 and 5 could have the opportunity of being the appellants prior to the test identification parade. ( 3 ) THE evidence of identification of the appellant Kunu by PW 5 cannot be accepted. This witness had claimed to have known this appellant from the fore and had even known his name. He had testified that after the occurrence, he had informed PW 1 naming this appellant as one of the culprits. This was also the evidence of PW 1. If this was so, PW 1 must have named this appellant as one of the culprits in the first information report lodged by him, but it was conspicuous by its absence. He had testified that after the occurrence, he had informed PW 1 naming this appellant as one of the culprits. This was also the evidence of PW 1. If this was so, PW 1 must have named this appellant as one of the culprits in the first information report lodged by him, but it was conspicuous by its absence. The evidence of PW 5 that he had been able to identify the appellant Kunu would appear to be an embellishment and improvement to bolster up the case of the prosecution. ( 4 ) PW 3 had identified the appellant Kunu and Radha. He had not known the appellants from before. It would be clear from the evidence of the Magistrate (PW 8) conducting it that tile Investigating Officer had arranged the test identification parade and had taken steps in that regard. Therefore, the statement made by the Investigating Officer that he had nothing to do with it cannot be accepted. It is not understood as to why the Investigating Officer chose to deny this fact instead of admitting it. As I have indicated while appreciating the evidence of PW I no step had been taken by the Investigating Officer to conceal the identity of the appellants before the test identification proceedings. PW 3 was not one of the persons who was inside the house when the depredation by the appellants took place. Had he been inside the house and had seen the crime for quite some time, he would be in a position to properly identify the culprits. As testified by him, he was at the eastern entrance of the house and PW 6, his brother, was on the northern side of the house. PW 3 had stated that he had received injuries as a result of shooting of arrows by the culprits at him. In that state of affairs, he roust have been in agony when the appellants and other culprits went away after committing the offence when PW 3 claimed to have seen them. As his evidence and that of other witnesses would show, it was a moonlit night, but the fact remained that the appellants had not been - known to him from before. He was, therefore, not expected to identify the appellants by their walk, gait, etc. As his evidence and that of other witnesses would show, it was a moonlit night, but the fact remained that the appellants had not been - known to him from before. He was, therefore, not expected to identify the appellants by their walk, gait, etc. PW 6 was on the northern side of the house and near the place through which the appellants had escaped, as his evidence would indicate. If PW 6 had not been able to identify the appellants, it was highly unlikely that PW 3 could have: Evidently to probablised his evidence of identification and to show that he was in a position to identify the culprits, PW 3 had disowned his own statement made to the Investigating Officer while he was examined at the trial that he had fallen down before the culprits had escaped. All this would show that this witness had scant regard for truth. He was not only a close relation of PW 1 but was also a victim of assault and therefore, he would be vitally interested for a successful termination of the trial against the appellants. Moreover, having discarded the evidence of PW 1 and 5 regarding the identification of the appellants, it would not be safe, reasonable and proper to base a conviction of two of the appellants solely on the evidence of PW 3, even if accepted. I am not oblivious of the legal doctrine that as provided in section 134 of the evidence Act, evidence is to be weighed and not counted and a conviction can be based on the testimony of a solitary witness. But such a witness must be very reliable and his evidence must be of an unimpeachable character for the reasons recorded by me, the evidence of PW 3 was certainly not of that character and could not be the sole basis for a conviction of two of the appellants whom he had identified. ( 5 ) IF the evidence of PW5 1, 3 and 5 was to be and ought to be discarded, the mere presence of some superficial injuries on the person of three of the appellants, namely, Kunu, Radha and Laxmidhar, two of whom had been identified by PW 3, would not further the case of the prosecution. ( 5 ) IF the evidence of PW5 1, 3 and 5 was to be and ought to be discarded, the mere presence of some superficial injuries on the person of three of the appellants, namely, Kunu, Radha and Laxmidhar, two of whom had been identified by PW 3, would not further the case of the prosecution. The learned Assistant Sessions Judge did not take notice of these infirmities and suspicious features in the evidence of identification and had recorded an order of conviction which, as rightly submitted by the learned counsel for the appellant, was unfounded on the evidence; on record. ( 6 ) IN the result, therefore, the appeals succeed and the same are allowed. The order of conviction and sentence passed against each of the appellants is set aside. The appellants be set at liberty forth with. Appeal allowed .