JUDGMENT : B.K. Behera, J. - Challenge in the Criminal Revision is to the concurrent findings recorded by Mr. S.S. Panda. Assistant Sessions Judge, Anandapur and Mr. R.C. Jena, Additional Sessions Judge, Keonjhar, holding the Petitioners guilty of the charge of dacoity punishable u/s 395 of the Indian Penal Code (for short, the 'Code') with sentences to undergo three years rigorous imprisonment and to pay a fine of Rs. 100/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of one month passed against each of them, after accepting the case of the prosecution that at about 10 to 11 p.m. on November 9, 1976, the Petitioners, with two to three other persons travelling in a jeep, dashed against the motor cycle being driven by Kelu Khan (P.W. 2) coming from the opposite direction and proceeding on his way to Bhadrak and further assaulting him, robbed him of Rs. 17,000 to Rs. 18,000 from his possession and rejecting the plea of the defence that the case had falsely been foisted against them. 2. Mr. R.C. Misra, the learned Counsel for the Petitioners, has taken us through the prosecution evidence and in particular, the evidence of P.Ws. 2 to 5, 10 and 11 and has contended that the case was out and out a false one and had been foisted against the Petitioners' after incompetent and suspicious investigation. Mr. A. Rath, the learned Additional Standing Counsel has submitted that the findings cannot be said to be unreasonable or perverse calling for interference by this Court in revision. The State has preferred, Government Appeal No. 2 of 1978 for enhancement of the sentences passed against the convicted persons and has preferred Government Appeal No. 31 of 1978 for setting aside the order of acquittal in respect of Sania alias Sanatan Das for an offence punishable u/s 112 of the Motor Vehicles Act. The two Government Appeals and the Criminal Revision have been heard together and will be governed by this common Judgment. 3. As regards Government Appeal No. 31 of 1978 directed against the order of acquittal passed in favour of Sania alias Sanatan Das, we notice from the judgment of the trial court that a concession had been made by the prosecution that no case had been made out against Sanatan Das and therefore, he was acquitted of the charge. 3. As regards Government Appeal No. 31 of 1978 directed against the order of acquittal passed in favour of Sania alias Sanatan Das, we notice from the judgment of the trial court that a concession had been made by the prosecution that no case had been made out against Sanatan Das and therefore, he was acquitted of the charge. Our attention had been invited to the fact that save and except the evidence of the victim (P.W. 3), there was no other evidence as to who was driving the jeep which dashed against him and this person had testified that it was another accused person, namely, Hrushikesh, who was driving the jeep. The learned Additional Standing Counsel has, therefore, submitted before us that he would not press this appeal and rightly so. 4. In Government Appeal, No. 2 of 1978, the grievance of the State is about the inadequate substantive term of imprisonment passed against the Respondents for the charge of dacoity. We find from the charges that specifically, six accused persons, namely the four Respondents and Nandu alias Chatrubhuja Das and Laxmidhar Ram alias Behera, stood charged for the commission of dacoity. It had not been stated, in the charge that there were other persons also involved in respect of the same offence or that some other unidentified persons along with the four Respondents had committed the offence. The learned Additional Standing Counsel has invited our attention to the fact that there was another accused person who had absconded and who was separately tried and convicted. But Mr. R.C. Misra, the learned Counsel for the Respondents, produced before us a certified copy of thee judgment in Criminal Appeal No: 129/45-K of 1978 which showed that the absconding accused Ramanath Ram had been acquitted by the appellate court. Thus the number of persons charged and convicted of dacoity was reduced to four. This Court had examined a similar question in Khagendra Gahan Vs. The State and held, on the principles laid down in the cases of Ram Shankar Singh and Others Vs. Thus the number of persons charged and convicted of dacoity was reduced to four. This Court had examined a similar question in Khagendra Gahan Vs. The State and held, on the principles laid down in the cases of Ram Shankar Singh and Others Vs. State of Uttar Pradesh, and Sektu v. State of U.P. AIR 1973 S.C. 780 , that as the specific case put forward by the prosecution was that nine persons named in the charge besides the approve and another person named by the approve had committed dacoity and eight persons named in the charge had been acquitted the Appellant could not be convicted u/s 395 of the Code. In the instant case, the prosecution had come out with a story through the evidence of P.W. 2 that six to seven persons had committed the offence. Six persons stood charged at the trial. Another person stood charged and tried separately. Two of the accused persons tied in this case were acquitted and the absconding accused tried separately was convicted by the trial court, but acquitted of the charge by the appellate court. We are therefore, of the view that if the acts, as alleged had been committed by the four Respondents in this appeal, they could be convicted for robbery punishable u/s 394 of the Code and in that case, we would not be inclined to interfere with the sentences imposed on them. 5. For the aforesaid reasons, both the Government Appeals shall fail. 6. Coming to Criminal Revision No. 350 of 1979, the order of conviction recorded against the Petitioners u/s 395 of the Code must be set aside in view of what we have recorded above. We would now proceed to examine as to whether the Petitioners could be convicted for robbery. 7. Twenty-three witnesses had been examined for the prosecution of whom P.W. 2 was the victim and P.Ws. 10 and 11 had been examined as witnesses to the occurrence. P.Ws. 3 to 5 were after-occurrence witnesses to whom P.W. 2 had narrated the occurrence. P.Ws. 1, 7 and 22 were the doctors who had treated the victim (P.W. 2) at different times. P.W. 13 had examined the convicted Petitioner Sanai alias Sanatan Das in the course of investigation and had noticed two injuries on his person. P.Ws. 3 to 5 were after-occurrence witnesses to whom P.W. 2 had narrated the occurrence. P.Ws. 1, 7 and 22 were the doctors who had treated the victim (P.W. 2) at different times. P.W. 13 had examined the convicted Petitioner Sanai alias Sanatan Das in the course of investigation and had noticed two injuries on his person. P.W. 15, then the Sub-Divisional Judlcial Magistrate at Anandapur, had conducted the test identification parade in which P.W. 2 had identified the Petitioners Ramesh, Jadu alias Hrushikesh and Fagi alias Madhusudan as the culprits. P.W. 23 was the Motor Vehicles Inspector who had examined the jeep bearing registration No. ORJ 654 in which the dacoits had allegedly come and by which they dashed against the motor cycle bearing registration No. ORU 8476 being driven by the victim P.W. 23 had also examined this motor cycle. P.W. 19, then the Officer-in-charge of the Anandpur police station, had investigation into the case registered on the basis of the first information report (Ex.1) lodged by P.W. 3 with the assistance of P.W. 17 (Sub-Inspector) and P.Ws. 16 and 18 (Assistant Sub. Inspectors) then attached to that police station. On the completion of investigation P.W. 19 had submitted the charge-sheet; against the Petitioners and the other accused persons. The Sub-Jailor at Anandapur had been examined for the defence to show that four persons Including one from Anandpur of which town the Petitioners were the residents had been allowed to go inside the Sub-Jail at the time of the test identification parade to facilitate identification of some of the Petitioners by P.W. 2. 8. The main evidence was that of identification of the Petitioners by P.Ws. 2, 10 and 11. The learned Counsel for both, the sides have submitted before us that if the evidence of identification in respect of the Petitioners is not accepted, the other circumstances would not fasten the Petitioners or any of themwith criminal liability. 9. 8. The main evidence was that of identification of the Petitioners by P.Ws. 2, 10 and 11. The learned Counsel for both, the sides have submitted before us that if the evidence of identification in respect of the Petitioners is not accepted, the other circumstances would not fasten the Petitioners or any of themwith criminal liability. 9. The revisional power of the High Court is as wide as the power of the, court of appeal, but normally the jurisdiction of the High Court in revision is to be exercised only in exceptional cases when there is a glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage of justice and while hearing a revision, the High Court is not expected to act as if it is hearing an appeal as land down in State of Orissa v. Nakula Sahu and Ors. 47 (1979) C.L.T. 624 (S.C.), following the principles enunciated in Amar Chand Agarwalla Vs. Shanti Bose and Another, etc., and Akalu Ahir and Ors. v. Ramdeo Ram 1973 S.C.D. 639. But where it is, found that there has been flagrant violation of the legal procedures and the findings of the trial and appellate courts based on tainted and untrustworthy evidence are perverse or unreasonable, the order of conviction must be set aside in the Interests of justice. We would now proceed to examine the findings recorded against the Petitioners keeping these principles in mind. 10. P.W. 2 had testified that while he was coming on his motor cycle bearing registration No. ORU 8476 leaving Anandpur for Bhadrak at 10.30 p.m. after collecting a bout Rs. 17,000 to Rs. 18,000 from different persons for having brought potatoes from the firm of his maternal uncle at Bhadrak on credit having kept the money in a piece of cloth inside a bag which had been kept in the tin box of the carrier of the motor cycle and with Rs. 300/- in his chest pocket with a torchlight (M.O. I) and a Lungi kept in the same bo; which had been locked up and had been moving in speed, he saw a jeep coming from the opposite direction and he stopped his motor code on the left side of the road. 300/- in his chest pocket with a torchlight (M.O. I) and a Lungi kept in the same bo; which had been locked up and had been moving in speed, he saw a jeep coming from the opposite direction and he stopped his motor code on the left side of the road. According to him the jeep came towards the right side over the heap of chips and dashed against his motor cycle for which he was thrown out and the motor cycle moved towards the back side and fell down. Describing about the occurrence, he had deposed: ...The jeep driver and 4 or 5 occupants including the accused persons identified by me came down from the jeep and stopped there. The jeep driver had an iron rod with him and others have lathis on their hands. Accused Hrushikesh Das (identified) was the driver of the jeep who was holding an iron rod. Accused. Hrushikesh, driver assaulted me by the iron rod on my tight leg. Accused Ramesh (identified), dealt me lathi blow on my head. I was standing then and I caught hold of the lathi. Other accused persons were standing then. I branded the lathi for my protection which might have hit some of the accused persons present there. Then all the accused persons surrounded me. By then the accused driver Hrushikesh had kneeled down on the ground. He stood up and made further assault on me on my injured leg. The rest accused persons assaulted me on my head. One of the accused persons present snatched the lathi from my hand. Due to the assault on my leg by iron rod my leg was fractured and I fell down, after the injuries. I had bleeding injuries on my head and leg. I had injuries on my person in various other places due to assault by the lathi by the accused persons. I felt as if I was dead. I was watching the movements of the accused persons. 4. The accused driver Hrushikesh brought an instrument like a screw driver and broke open the lock of my motor cycle and he brought out the money torch light and other moveables from the box. Those articles were loaded in the 'jeep -in which the accused persons were travelling and they were fled away towards Anandapur in the said vehicle. Accused Madhusudan Ram was also present in jeep then. Those articles were loaded in the 'jeep -in which the accused persons were travelling and they were fled away towards Anandapur in the said vehicle. Accused Madhusudan Ram was also present in jeep then. It was bright night and through the moon light I could identify the accused persons Ramesh, driver Hrushikesh and Madhusudan Ram. Accused Madhusudan also assaulted me by lathi. The vehicle (jeep) was driven towards Anandapur without the head light. Through the head light of my motor cycle I could identify the number plate of the jeep with the accused persons sited (seated) therein was O.R.J. 654 driven by the accused Hrushikesh. While the accused persons were assaulting (sic) 2 or 3 persons came from Chhenapadi side on the cycle and they stopped there. The accused persons (Dacoits) showed them theratening and hence the persons came from Chhenapadi side left the place. Thereafter 4 persons from Chhenapadi side came there and I called them. By then the jeep had already left. I requested these persons to send me to Bhadrak for treatment and narrated them the incident of assault on me and removal of the cash and other moveable from my motor cycles (cycle) by the Dacoits. At that time 2 trucks came from Bhadrak side. The persons of Chhenapadi present there, detained the truck O.R.J. 731 and sent me to Bhadrak. I was taken to Bhadrak Govt. Hospital. 11. P.Ws. 10 and 11, both residents of Dadhibamanpur, had claimed to have come to the scene while returning from Basantia Hat and to have witnessed a part of the occurrence. According to P.W. 10, he could identify the Petitioners Ramesh and Hrushikesh, but could not identify 5 to 6 other persons who were there with them. P.W. 11 had testified that he could identify the Petitioners Ramesh, Jadu and Sania and besides them, there were some other persons. Both these witnesses had deposed that on being threatened by the culprits, they left the place. Neither of them had stated about the assault on the person of P.W. 2 or about the commission of robbery. It was not in their evidence that they had known the persons identified by them in the court from before and they had not been called upon to identify the suspects at a test identification parade. Neither of them had stated about the assault on the person of P.W. 2 or about the commission of robbery. It was not in their evidence that they had known the persons identified by them in the court from before and they had not been called upon to identify the suspects at a test identification parade. On their own showing, they had not disclosed about what they had seen to anyone until they were examined by the investigating agency months after the occurrence. No doubt, Investigating Officers work on several clues based on the statements of persons examined by them and also on secret information. There was, however, no material placed at the trial as to how and under what circumstances these two persons figured as witnesses to the occurrence and were examined in the course of investigation so long thereafter. P.W. 2 had, no doubt, spoken about the presence of two persons who came to the spot, but had not described their features, far from naming them or their village. The belated statements of these two witnesses claiming to have identified some of the Petitioners as the culprits without any explanation as to why and under what circumstances their statements were not available to the investigating agency earlier and as to why they had not disclosed the occurrence to anyone after having seen it cannot safely be accepted. In this connection reference may be made to the principles laid down in Babuli alias Narayan Bahera Vs. The State of Orissa, and Bishnu Deo Vs. The State. Apart from these highly suspicious features in their evidence with regard to their delayed examination in the course of investigation, identification evidence of witnesses with regard to persons not known to them from before for the first time in the court without a prior test identification parade may be valueless. See Kanan and Others Vs. State of Kerala, and V.C. Shukla and Others Vs. State (Delhi Administration). The trial and appellate courts certainly went wrong in placing reliance on such evidence and in our view, the courts below had unreasonably accepted the evidence of P.Ws. 10 and 11. 12. See Kanan and Others Vs. State of Kerala, and V.C. Shukla and Others Vs. State (Delhi Administration). The trial and appellate courts certainly went wrong in placing reliance on such evidence and in our view, the courts below had unreasonably accepted the evidence of P.Ws. 10 and 11. 12. Coming to the evidence of identification of three of the Petitioners, namely, Ramesh, Jadu alias Hrushikesh and Pagi alias Madhusudan by P.W. 2 in the court as being three of the persons who had committed the crime, we find that due notice had not been taken by the courts below with regard to the highly suspicious features in his evidence and the test identification proceedings. His evidence had glibly been accepted and had been made the foundation of the order of conviction with some other items of evidence of inconsequential character. In order evidently to make his evidence of identification of the three Petitioners in the court probable, P.W. 2 had blurted out a statement that he had known these Petitioners belonging to Anandpur from before and had seen them when he had occasions to go to Anandpur in connection with the business of the firm of his maternal uncle He had gone to the length of giving the registration number of the jeep in which the culprits came to be OR] 654 and he had claimed to have seen the number plate with the light of his motor cycle. On his own showing, he had stopped his motor cycle on the left side when the jeep came from the opposite direction and he had sought to show that with the evidence purpose of trampling over him, the jeep was driven over the heap of chips in his front and it dashed against his motor cycle. If this was the state of affairs, P.W. 2 must have been in a state of grave panic then and it would not be reasonable to accept his evidence that he had been able to see the registration number of the jeep. He had not given out the number of the jeep to any one after the occurrence. If this was the state of affairs, P.W. 2 must have been in a state of grave panic then and it would not be reasonable to accept his evidence that he had been able to see the registration number of the jeep. He had not given out the number of the jeep to any one after the occurrence. Although the Investigating Officer (P.W. 19) had claimed to have seen some marks over the heap of chips, it would appear from his evidence that the place was well-guarded until the visit of the Motor Vehicle Inspector (P.W. 23) and the latter had deposed that there was a heap of chips, but he did not remember if there was any mark of the wheel thereon. He had added by saying that had there been any track or skid mark, he should have mentioned that fact in his report (Ext. 10). Thus the evidence of P.W. 2 that the jeep had been driven on its right side over the heap of chips in order to dash against him had not found support in the evidence of P.W. 23. 13. P.W. 23 had, no doubt, found on examination of the jeep bearing registration number ORJ 654 that the right side rim and the right side front bumper had been dented, but there was no indication in his evidence as to how far back these damages might have been caused to the vehicle. As his evidence would show these dents could not take place unless the vehicle had come in contact with a tree or a wall. This is what he had stated in his cross-examination of which no serious notice had been taken by the courts below. There was evidence to show that the registration certificate in respect of this jeep was in the name of the father of the Petitioner Ramesh and the Petitioner Sanatan, brother-in-law of the Petitioner Ramesh had been driving the jeep. Some evidence had also been led through P.W. 20 that on November 9, 1976, he had sold 10 liters of petrol for this jeep and P.W. 14 had testified that at about 11 p.m. on November 9, 1976, he had seen the movement of the jeep near the police station. But these circumstances, by themselves, would not lead one to the conclusion that this jeep had been used for the commission of the offence by the culprits. 14. But these circumstances, by themselves, would not lead one to the conclusion that this jeep had been used for the commission of the offence by the culprits. 14. In order to show that this was the jeep which had been used by the culprits the prosecution had relied on the recovery of a torchlight (M.O. I) with two batteries (M.O. I), on which P.W. 2 had claimed to have written the date of purchase, from inside the jeep during the night of occurrence. While P.W. 2. had claimed M.O. I as belonging to him the Petitioner Sanatan had claimed this article to be his. According to P.W. 2. it was an Eveready torchlight made in India, but M.O. I would show that it had been made in Hong Kong. P.W. 19 did not choose to mention in the seizure list about the make of this article and it was not sent to the custody of the court after its seizure. A criticism could legitimately be made that after its seizure and before it was produced in the court at the time of trial the date might have been written on the batteries by P.W. 2. In his evidence P.W. 2 stated that the people of his firm including Rambas Khan and Sajal Khan had seen him using M.O. I. Neither of these two persons had been examined for the prosecution. In a case of this nature, where the jeep from which the torchlight was recovered was said to be the jeep used for the commission of the offence, the Investigating Officer should have made a deeper probe to find out the ownership of M.O. I. as if it had belonged to P.W. 2, that would certainly be a guilt-pointing circumstance against the Petitioner Sanatan who had been driving this jeep. For these reasons, we are of the view that the courts below could not have found that M.O. I. belong to P.W. 2. 15. P.W. 13 had noticed two ulcers one on the left knee and the other below the left knee joint of the Petitioner Sanatan on November 19, 1976, which could be caused by coming in contact with "hard and soft substance" as testified by him and he had proved the injury report (Ex. 8). 15. P.W. 13 had noticed two ulcers one on the left knee and the other below the left knee joint of the Petitioner Sanatan on November 19, 1976, which could be caused by coming in contact with "hard and soft substance" as testified by him and he had proved the injury report (Ex. 8). While according to the prosecution, these injuries' might have been caused owing to the whirling of a lathi on the spot by P.W. 2 in self-defence, the case of the defence was that having been illegally detained at the police station this Petitioner had been assaulted and had sustained the injuries. It would be noticed from the evidence of the Investigating Officer that he had suspected this Petitioner from November 10, 1976. There was no evidence to show that he had noticed injuries on the person of this Petitioner on that day. He issued a requisition (Ex. 8) on November 19, 1976 for the medical examination of this Petitioner having noticed injuries on his person. P.Ws. 10 and 11 had not stated that they had seen P.W. 2 whirling a lathi. There was no evidence either that P.W. 2 had informed P.Ws. 3 to 5, who came to the scene immediately after the occurrence, about it. There was complete absence of evidence that immediately after the occurrence, injuries had. been noticed on the person of this Petitioner. In view of these facts and circumstances, the presence of two injuries on the person of the Petitioner Sanatan, as noticed by the doctor on November 19, 1976 could not be a circumstance in favour of the prosecution and could not further its case. 16. A court is not concerned with truth apart from the evidence on record. Whatever might have been the true state of affairs, we are of the view that on the evidence on record, the courts below unreasonably and unjustifiably accepted the evidence of P.W. 2 that he had been carrying Rs. 17,000 to Rs. 18,000/-, having kept the entire amount except a sum of Rs. 300/- in the tin box and Rs. 300/- in his chest pocket. It was not in the evidence of P.W. 2 that the culprits removed Rs. 300/- from his chest pocket. What happened to this amount was left un-explained. According to him, the culprits broke open the lock of the box and removed the amount kept by him. 300/- in the tin box and Rs. 300/- in his chest pocket. It was not in the evidence of P.W. 2 that the culprits removed Rs. 300/- from his chest pocket. What happened to this amount was left un-explained. According to him, the culprits broke open the lock of the box and removed the amount kept by him. The evidence of P.W. 2 was that he had collected the entire amount towards the payments due to be made by a number of persons at Anandpur and in villages nearby towards the price of potatoes taken by them on credit from the shop of his maternal uncle. The trial and appellate courts were prepared to accept his evidence in this regard and that of P.Ws. 6 and 8 who had allegedly made some payments to P.W. 2 without any documentary evidence whatsoever and without even the evidence of the maternal uncle of P.W. 2 who was said to be the proprietor of the firm dealing in potatoes. There could be no doubt that the maternal uncle of P.W. 2 was a most material witness and his non-examination would' not only justify the drawing of an adverse inference against the prosecution u/s 114(g) of the Evidence Act, but the non-examination of such a witness would cast a serious reflection on the fairness of the trial See Habeeb Mohammad Vs. The State of Hyderabad, . 17. P.W. 2 had stated in his cross-examination that he could not say from which retailers he was to realise the dues outstanding against them although he could name a few of them. On his own showing, he did not give any receipt to the persons from whom he had collected the amounts nor did he sign any paper or document in this regard and he had not even informed the proprietor of the firm as to the amounts collected by him on the day of occurrence. He had further admitted that he had not given the details of the collections made by him to his maternal uncle and the latter did not even ask him about it. Strangely enough, in his statement made at the trial on July 22, 1977, this witness had stated in his cross-examination that he did not recollect what amount had been collected by him when he came to Anandpur on the day of occurrence. Strangely enough, in his statement made at the trial on July 22, 1977, this witness had stated in his cross-examination that he did not recollect what amount had been collected by him when he came to Anandpur on the day of occurrence. He had stated that till that time he had not stated to the Investigating Officer as to what amount he had realised from the retailers. According to him be had given a list to the Sub-Inspector of Police of Anandpur when he came for the test identification parade for the second time which had been handed over to him by his maternal uncle. No such list had been produced and proved. That apart, such a list could not also be admitted in evidence as it would be construed to be a statement made to a police officer in the course of investigation. 18. The evidence of P.W. 6 that he had paid Rs. 1900/- to P.W. 2 on November 9, 1976 and that of P.W. 8 that he had paid Rs. 150/- to P.W. 2 on the same day had not been supported by any contemporaneous documentary evidence and these two witnesses could easily make such statements as thereby they would incur no liability upon themselves. According to P.W. 6 P.W. 2 did not pass On a receipt to him although be paid Rs. 1900/- and he did not demand a receipt for it and he did not even contact the firm to ascertain as to whether the amount would be adjusted. He had claimed to have made a note of payment of Rs. 1900/- to P.W. 2 in his personal note (book, but no such note book had been produced and proved by the preposition. P.W. 8 could not say if his transaction with the film had been entered in the books of accounts of the firm at Bhadrak and he had not maintained any accounts of his shop. In such state of the evidence, we are constrained to observe that the story put forward by P.W. 2 that be had been carrying Rs. 17,000 to Rs. 18,000/- after collection from different persons should have been characterised by the courts below as a myth and must never have been accepted. 19. As rightly submitted by Mr. In such state of the evidence, we are constrained to observe that the story put forward by P.W. 2 that be had been carrying Rs. 17,000 to Rs. 18,000/- after collection from different persons should have been characterised by the courts below as a myth and must never have been accepted. 19. As rightly submitted by Mr. Misra for the Petitioners, the evidence of P.W. 2 with regard to assault on his person by the culprits was in serious conflict with the medical evidence. According to P.W. 2, the jeep dashed against his right hand and he had swelling and pain on phalanges. No such injuries had been noticed by the doctors who had treated him. P.W. 2 had stated in his evidence that he had been given 30 to 40 strokes on his head with iron rod and lathi with high velocity and about 25 strokes had been given to him on his right leg with iron rod and lathi. This evidence does not find support in the medical evidence. If 30 to 40 strokes would be dealt on the head with iron rod and lathi with high velocity, it is not understood how there would be no fracture on the head. 20. If P.W. 2 had been attacked in the manner stated by him by 11 number of persons armed with deadly weapons after he and his motor cycle had been hit by the jeep as a result of which he fell down, it was highly unlikely that he would have been in a position to snatch a lathi and whirl it in self-defence. We are of the view that this statement had been made deliberately by P.W. 2 at the trial to connect the existence of injuries on the person of the Petitioner Sanatan to connect him with the crime by showing his presence on the spot. 21. This leaves us with the evidence of identification of the three Petitioners by P.W. 2 in die court and at the test identification parade. 22. As earlier indicated by us, P.W. 2 had identified the Petitioners Ramesh, Jadu alias Hrushikesh and. Pagi alias Madhusudan at the test identification parade and then in the Court. As to the appreciation of evidence of identification and the value of the test identification proceedings this Court referring to the observations made by the Supreme Court in Budhsen and Another Vs. State of U.P.. Pagi alias Madhusudan at the test identification parade and then in the Court. As to the appreciation of evidence of identification and the value of the test identification proceedings this Court referring to the observations made by the Supreme Court in Budhsen and Another Vs. State of U.P.. Hasib v. The State of Bihar AIR 1972. S.C. 383, Chander Singh Vs. The State of U.P. and Sampat Tatyada Shinde Vs. State of Maharashtra has summarised the principles laid down by the Supreme Court from time to time in Sidha Dahure and Ors. v. State 52 (1981) C.L.T. 512 thus: ...The substantive evidence of a witness as regards identification is a statement made in the Court. The evidence of mere identification of an accused person at the trial for the first time is, from its very nature, inherently of a weak character. In order to carry conviction the evidence should ordinarily show as to how and under what circumstances, the witness came to pick out the particular accused person and the details of the part which the accused had played in the crime in question with reasonable particularity. The purpose of a test identification parade seems to be test and strengthen the trustworthiness of the evidence given in the Court. As a safe rule of prudence it is considered necessary to generally look for corroboration of the sworn testimony of a witness in the Court as regards the identity of an accused who is a stranger to him in the form of an earlier test identification proceeding. There may, however, be exceptions to this general rule when the Court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. Keeping-in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate suspicions of unfairness and to reduce the chances of testimonial error. They must take intelligent interest in the proceedings bearing in mind that the life and liberty of an accused person may depend on their vigilance and caution and that justice should be done in the identification. The power to identify 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 evidence. The power to identify 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 evidence. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before the identification and 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. 23. As earlier observed by us, the evidence of P.W. 2 that he had known the three identified Petitioners from before as residents of Anandpur had deliberately been made in order to probabilise his evidence of identification. On his own showing, be did not keep any note of special identifying marks for identification of the culprits and he did not give any description of the culprits before the Investigating Officer. As stated by him in his cross-examination, he had no reasons to recognise the culprits. He did not state to the Investigating Officer that the culprits appeared to be from Anandpur, as by then he could not know exactly to which place the accused persons belonged. 24. P.W. 2 allegedly informed P.Ws. 3 to 5 about the occurrence and on the basis of his information, P.W. 3 had lodged the first information report (Ex. 1). Therein, against the heading, "Name and residence of accused", it had been mentioned "unknown". The case had been registered u/s 394 of the Code and not u/s 395 thereof and even the number of the culprits had not been mentioned therein According to P.W. 3, when they asked P.W. 2 as to who assaulted him and how much money had been stolen, P.W. 2 had told them that he should first be taken to the hospital in order to save his life and that he was not able to say anything then. The number of the jeep in which the culprits had allegedly come had not 'been mentioned in the first information report. The description of the culprits or the identifying feature of anyone, of them had not been mentioned either. We do not see any justifiable reasons as to why P.W. 2 could not inform P.Ws. The number of the jeep in which the culprits had allegedly come had not 'been mentioned in the first information report. The description of the culprits or the identifying feature of anyone, of them had not been mentioned either. We do not see any justifiable reasons as to why P.W. 2 could not inform P.Ws. 3 to 5 that the culprits belonged to Anandpur and would not even give the number of the jeep if known to him. According to P.W. 3, P.W. 2 did not tell him that he could identify the dacoits. As deposed to by P.W. 4. P.W. 2 had told him that there had been an accident. P.W. 4 had stated that P.W. 2 did not give the jeep number in which the dacoits had travelled. P.W. 5 had also testified that P.W. 2 did not give the number of the jeep nor told them about the number of persons who took part in the crime. 25. P.W. 2 had claimed to have disclosed the entire occurrence to the driver of the truck in which he was carried to the Bhadrak Hospital for treatment after the incident. But the evidence of the driver (P.W. 9) was that P.W. 2 told him that the dacoits assaulted him and took away his money. P.W. 2 did not give him the names of the dacoits nor the persons who assaulted him nor the name of the village to which they belonged. There was nothing in the evidence of P.W. 9 to indicate that P.W. 2 had given the identifying features of the culprits. 26. It would appear from the evidence of P.W. 18, the Assistant Sub-Inspector of Police that on November 10. 1976, be examined P.W. 2 at the Bhadrak Hospital and the examination could not be completed as P.W. 2 was not in a fit state to make the statement and therefore, he examined P.W. 2 subsequently at Cuttack, where he had been taken for treatment, on November 12, 1976. P.W. 2 had not stated to him that he could identify the culprits by their facial appearance nor did he state, as deposed to in the court, that the driver of the jeep had an iron to and others had lathis in their hands at the time of the occurrence. P.W. 2 had not stated to him that he could identify the culprits by their facial appearance nor did he state, as deposed to in the court, that the driver of the jeep had an iron to and others had lathis in their hands at the time of the occurrence. P.W. 2 had been examined by the Officer-in-charge (P.W. 19), who had been investigating into the case as late as on March 14, 1977. All this would show that if any incident of robbery had really taken place as sought to be established by the prosecution P.W. 2 had not been to a position to identify the culprits in the dark night and had not marked their number or features nor the number of the jeep in which they had allegedly traveled although there might have been light of the moon as deposed to by him, because we notice from the almanac that it was the second day in the dark fortnight and the occurrence had taken place at about 10 to 11 p.m. when if there had been no clouds, the moon would be visible. 27. The occurrence had taken place on November 9, 1976. Evidently because P.W. 2 did not know the names of the culprits, he had been asked to identify the suspects at a test identification parade which was conducted as late as on February 26, 1977 i.e., more than three and a half months after the occurrence. No satisfactory explanation has been offered by the investigating agency as to why this inordinate delay in such Can important step in the course of investigation occurred. True, P.W. 2 had to be carried to the place of test identification proceedings by four persons which would show that he was not in a state to move, but the test identification parade could be held much earlier and P.W. 2 could have been carried in the same manner. 28. There were some other striking suspicious features on which due notice had not been taken by the courts below and we are constrained to observe that Mr. G.C. Mohanty, then the Sub-Divisional Judicial Magistrate who had the case before him and who had conducted the test identification parade, held not been quite vigilant in this regard and had not taken due and prompt steps to allay suspicious of unfairness. G.C. Mohanty, then the Sub-Divisional Judicial Magistrate who had the case before him and who had conducted the test identification parade, held not been quite vigilant in this regard and had not taken due and prompt steps to allay suspicious of unfairness. As would clearly appear from the evidence of P.W. 2, he had been brought twice for the purpose of identification of the culprits and the test identification parade was conducted on the second occasion. On December 23, 1976 the Investigating Officer had made an application before the Court to place the Petitioners in the custody of the police for the purpose of investigation and the Sub-Divisional Judicial Magistrate allowed the prayer and remanded the Petitioners to the police custody till December 28, 1976. Before they were remanded to the police custody, the Petitioners made an application that a date to hold the test identification parade had already been fixed and that the purpose of taking the Petitioners to the police custody was only to get them identified by the identifying witnesses. The Sub-Divisional Judicial Magistrate did not properly apply his mind to such an important aspect and merely on a technical ground that no specific prayer had been made in the application, disposed it of by stating "Seen and filed as there is no prayer". On February 21, 1977, the Petitioners were produced in the court in custody. The Investigating Officer made an application to hold the test identification parade and the Sub-Divisional Judicial Magistrate fixed February 26, 1977 as the date for holding the test identification parade. On the same day, i.e. on February 21, 1977, the Petitioners made an application before the Sub-Divisional Judicial Magistrate alleging that Kelu Khan (P.W. 2) had come to the court in a car bearing registration No. ORB 1364 and he had been made to identify the Petitioners in the court. Ex. C was the application. As per Ex. D, the Sub-Divisional Judicial Magistrate merely directed that the application be put up on the date fixed. As stated by P.W. 2 himself, he had been brought twice for the test identification parade. His own statement would lend assurance to the allegation made by the Petitioners against the bona fides of the investigating agency. The Sub-Divisional Judicial Magistrate neither made an inquiry nor directed an inquiry. As stated by P.W. 2 himself, he had been brought twice for the test identification parade. His own statement would lend assurance to the allegation made by the Petitioners against the bona fides of the investigating agency. The Sub-Divisional Judicial Magistrate neither made an inquiry nor directed an inquiry. Having passed an order directing that the application be put up on the next date, he took no action thereon. On November 26, 1976, the Petitioners had made an application (Ext. A) before the Sub-Divisional Judicial Magistrate complaining that they had been detained at the police station from November 11, 1976. When a report was called for, the Investigating Officer denied this allegation. It would, however, be noticed from the evidence of P.W. 13 (the doctor at Anandpur) that when on November 19, 1976, the Petitioner Sanatan Das was produced before him for his medical examination, he had been handcuffed. The Petitioners, after their arrest on December 3, 1976, had been produced before the Sub-Divisional Judicial Magistrate on December 4, 1976. They complained of ill-treatment and assault at the hand of the police officials. The Sub-Divisional Judicial Magistrate directed their examination by a doctor and called for a report from the Investigating Officer. Strangely, however, neither the Petitioners were examined by the doctor nor the Investigating Officer submitted a report. The Sub-Divisional Judicial Magistrate was certainly not powerless and the inaction on his part in this regard was not proper. 29. As we have earlier indicated, four persons including a person of Anandpur had carried the injured (P.W. 2) inside the Sub-Jail for the test identification parade. As the Petitioners were residents of Anandpur, the investigating agency should have done well not to allow a person of Anandpur to go inside the Sub-Jail as one of the persons carrying the injured (P.W. 2) in order to allay any apprehension in the minds of the suspects that a person from Anandpur had been brought to facilitate identification by P.W. 2. All this would indicate that investigation was not fair and was fraught with suspicious features and due and adequate prosecutions had not been taken prior to the test identification proceedings. 30. All this would indicate that investigation was not fair and was fraught with suspicious features and due and adequate prosecutions had not been taken prior to the test identification proceedings. 30. Apart from these considerations, neither at the test identification parade nor when his statement was recorded by the Sub-Divisional Judicial Magistrate u/s 164 of the Code of Criminal Procedure, P.W. 2 had given the distinct and definite roles played by each of the Petitioners identified by him at the test identification parade. In this regard, some important statements made by P.W. 2 in his cross-examination with regard to the test identification parade could not be lost sight of. He had stated: ...I did not identify the accused who took away my money at the time of occurrence. I did not identify the person who assaulted me by iron rod nor identify that man in particular. I did not identify the person who assaulted me by lathi nor the person who took away the money. 31. Regard being had to the aforesaid suspicious features in the evidence with regard to the identification of the Petitioners, the only reasonable course for the courts below was to throw out such evidence as being highly suspicious and unsatisfactory. A Judicial Magistrate should keep in mind the salient principles relating to test identification proceedings, as identification of a suspect at the test identification parade and thereafter at the trial would affect the liberty of an individual and in grave cases, even cost his life. Due precautions should, therefore, be taken by the magistracy prior to and at the time of the test identification proceedings. 32. As has been laid down by the Supreme Court in Kanan and Others Vs. State of Kerala, and State (Delhi Admn.) v. V.C. Shukla and Anr. A.I.R.1980 S.C. 1382, in a case where the accused persons are not known to the identifying witnesses from before, identification evidence without a prior test identification parade is valueless. A test identification parade should be conducted fairly and properly. As has been observed in Antar Singh Vs. State of Madhya Pradesh delay in the test identification parade would certainly affect' the evidence of identification. As we have indicated earlier, P.W. 2 had not given thee description of the culprits to P.Ws. A test identification parade should be conducted fairly and properly. As has been observed in Antar Singh Vs. State of Madhya Pradesh delay in the test identification parade would certainly affect' the evidence of identification. As we have indicated earlier, P.W. 2 had not given thee description of the culprits to P.Ws. 3 to 5 who came to the scene after the occurrence or to the driver who carried him or in his statement to the Investigating Officer. The Supreme Court in Wakil Singh and Others Vs. State of Bihar has observed and held: In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity, nor did the witnesses give any identification marks viz., stature of the accused or whether they were fat or thin or of a fair colour or of black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which, case the reasonable possibility of mistake in identification cannot be excluded. For these reasons; therefore, the trial court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, apart from the reasons that were given by the trial court. The High Court however has chosen to rely on the evidence of a single witness, completely overlooking the facts and circumstances mentioned above. The High Court also ignored the fact that the identification was made at the T.I. parade about 31 months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember, the features of the accused and he is, therefore, very likely to commit mistakes. In these circumstances unless the evidence is absolutely clear it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness. 33. In these circumstances unless the evidence is absolutely clear it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness. 33. As bas been observed by the Supreme Court in Soni v. State of Uttar Pradesh 1983 S.C. 49 : (1982) 3 S.C.C. 368 , the delay in holding the identification parade throws a doubt on the genuineness thereof, apart from the fact that it is difficult that after a lapse of long time, the witness would be remembering the facial appearance of the Appellant. In that case, test identification parade had been conducted after a lapse of forty-two days from the date of arrest of the Appellant. If at the earliest opportunity, identifying features have not been mentioned, at identification after long delay in a test identification parade becomes suspicious. See Manzoor v. State of Uttar Pradesh 1982 S.C.C. 356 and Suleman v. State of Uttar Pradesh (1982) 2 S.C.C. 72 . In view of that we have stated above, the possibility of the Petitioners having been shown to P.W. 2, as alleged by the Petitioners, could not be ruled out and in that case, identification at the test identification parade and subsequently in the Court would be valueless. 34. We thus find, on a careful consideration of the evidence of P.W. 2 and the other circumstances referred to above, that the evidence of identification of the three Petitioners by P.W. 2 could not be accepted and the courts below have gone completely wrong in relying on such unreliable and tainted evidence without duly considering the highly suspicious features referred to above. We would accordingly reject the evidence of P.W. 2 in this regard. 35. We would like to record all other highly suspicious feature in the case. It was in the evidence of the Investigating Officer that after examining three persons named, by him, he had sufficient materials for arresting the Petitioners. What had been stated by those witnesses to the Investigating Officer would certainly be inadmissible in view of Section 162 of the Code of Criminal Procedure. But those three persons would certainly be material witnessed. None of them had been examined. 36. We thus find that the findings recorded by the trial' and appellate courts are unreasonable and could not have been based on the evidence on record which was untrue and untrustworthy. But those three persons would certainly be material witnessed. None of them had been examined. 36. We thus find that the findings recorded by the trial' and appellate courts are unreasonable and could not have been based on the evidence on record which was untrue and untrustworthy. To accept such findings would mean travesty of justice. The orders of conviction and sentences recorded against the Petitioners must, therefore, be set aside. The torchlight seized from the possession of the Petitioner Sanatan Das has to go back to him. 37. In the result, Government Appeal Nos. 2 and 31 of 1978 fail and are dismissed. Criminal Revision No. 350 of 1979 is allowed and the orders of conviction and sentences passed against the Petitioners are set aside. P.K. Mohanti, A.C.J. 38. I agree. Final Result : Allowed