JUDGMENT : G.B. Patnaik, J. - The two Petitioners along with five others were tried by the Chief Judicial Magistrate-cum-Assistant Sessions Judge, Sundargarh, for offences under Sections 395 and 412, Indian Penal Code, on the allegations that on the night of 11-4-1980 while Kulamani (P.W. 1) was sleeping in his house with his family members, he saw four persons entering into his house with daggers and lathis and they assaulted P.W. 1 and snatched away ornaments from his wife and took away cash worth Rs. 3,000/-. When. Kulamani raised hulla, villagers came and seeing villagers coming, the dacoits decamped. Kulamani was then taken to the Primary Health Centre. On the next day, a First Information Report was lodged at Talasara Police Station whereafter the police took up investigation. Several articles were seized and in course of investigation a Test Identification Parade was held in respect of suspects by the Sub-Divisional Judicial Magistrate, Sundargarh. On completion of investigation, charge-sheet was submitted against the seven accused persons. 2. The plea of the accused persons is one of denial. 3. The prosecution examined as many as sixteen witnesses. It is not necessary to discuss the evidence adduced by the prosecution in view of the points raised by Mr. Palit appearing for the Petitioners in the present case. It is sufficient for the present to note that out of the seven accused persons who stood their trial before the Assistant Sessions Judge, three of them were acquitted namely accused Dhaneswar Baiga, Muna alias Manbodh Lohara, and Michu Lohara on a finding that prosecution has failed to establish the charge against them. The learned Assistant Sessions Judge convicted accused Jogeya alias Jogesh Kumar Sha, Sada alias Sadananda Dehuri, Karunakar Naik and Brushabha Badaik u/s 395, Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years each. On appeal, the learned Sessions Judge acquitted accused Sadananda, but sustained the conviction of rest of the three accused persons, namely accused Jogesh, Karunakar and Brushabha. Of these three, Jogesh and Karunakar are the Petitioners in the present case. 4. Mr. Palit, the learned Counsel for the Petitioners, contends that the conviction of Petitioner Karunakar cannot be sustained in law, the said conviction being based solely on the identification in Court the earlier test identification parade having been held to be illegal and having been discarded by both the courts below. 4. Mr. Palit, the learned Counsel for the Petitioners, contends that the conviction of Petitioner Karunakar cannot be sustained in law, the said conviction being based solely on the identification in Court the earlier test identification parade having been held to be illegal and having been discarded by both the courts below. The learned Sessions Judge on discussion of the evidence has held that prior to the test identification parade, the identifying witnesses had a chance to see all the suspects and, therefore, the Assistant Sessions. Judge rightly held that no importance whatsoever should be attached to the test identification parade report. The learned Sessions Judge also discussed die evidence of P.W. 2, a co-villager, according to whom the accused persons were brought in a jeep to the house of P.W. 1 by the police after their arrest and before the so-called test identification parade was held. In this view of the matter, the courts below were fully justified in ignoring the test identification parade held by the Sub-Divisional Judicial Magistrate. It is true that the evidence regarding identification at the test identification parade is only a corroborative piece of evidence, but it assumes great importance in assessing the worth of the substantive evidence in Court regarding identification and it has been held in several cases that the evidentiary value of the evidence of a witness identifying an accused long after the occurrence is practically of no value. As has been held by the Supreme Court in the case of Kanan and Others Vs. State of Kerala, - ...It is well settled that where a witness identified an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. Parade to test his powers of observations. The idea of holding T.I. Parade u/s 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. Parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.... To the same effect is the observation of the Supreme Court in the well-known "Kissa Kursi Kan" case reported in V.C. Shukla and Others Vs. If no T.I. Parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.... To the same effect is the observation of the Supreme Court in the well-known "Kissa Kursi Kan" case reported in V.C. Shukla and Others Vs. State (Delhi Administration) where in paragraph 23 of the judgment, their Lordships held: ...Moreover, the identification of Tripathy by the witness for the first time in court without being tested by a prior test identification parade was value less. This being the position of law, in my opinion, Petitioner Karunakar could not have been convicted solely on the basis of his identification in Court by P.Ws. 1, 8 and 9. The learned Sessions Judge relying on the evidence of P.Ws. 1 and 8 who stated that Karunakar and Brushabha took them to different rooms and ultimately took a way cash and valuables, came to the conclusion that it could be presumed that after entering into the different rooms, the culprits must have focussed torchlights at different parts of the room giving chance to the witness to correctly identify them and in these circumstances, the evidence of the informant and his wife was liable to be believed. In my opinion the learned Sessions Judge was not at all justified even on the basis of the evidence of P.Ws. 1 and 8 in holding that they had sufficient opportunity to correctly identify the two accused persons, namely Karunakar and Brushabha. However, in view of my earlier conclusion that the identification in Court of an unknown accused person long after the occurrence without they being identified in an earlier test identification parade, can not form the sole basis of conviction, the conviction of Petitioner Karunakar must be held to be unsustainable in law. I would, therefore, set aside the conviction of Petitioner Karunakar and acquit him of the charge levelled against him. 5. Coming to the case of other Petitioner Jogesh, the incriminating evidence against him is that while in custody, he produced the stolen articles (M.Os. I, II & V) as well as the knife (M.O. X) after confessing that he along with others committed dacoity whereafter the said articles were seized as per seizure list (Ext. 7/1). The Investigating Officer (P.W. 16) categorically stated to the aforesaid effect. P.Ws. I, II & V) as well as the knife (M.O. X) after confessing that he along with others committed dacoity whereafter the said articles were seized as per seizure list (Ext. 7/1). The Investigating Officer (P.W. 16) categorically stated to the aforesaid effect. P.Ws. 12 and 13 are the two seizure witnesses of whom P.W. 13 is a police officer and P.W. 12 is an independent witness. P.W. 12 has been declared hostile and his evidence is of no assistance to the prosecution. P.W. 13, however stated that after the arrest of accused Jogesh he confessed that he had kept the stolen articles and leading, them to his house brought from his house the gold necklace (M.O. I), Silver Bandrias (M.O. II), silver chain (M.O. V) and the knife (M.O. X) and produced the same before the Officer-in-charge (P.W. 16) who seized the same as per seizure list (Ext. 7/1). In view of the evidence of P.Ws. 13 and 16, the fact of seizure of these articles from the possession of accused Jogesh on being produced by him must be held to have been established. 6. The question remains for consideration is as to whether on this evidence accused Jogesh can be convicted for the offence in question or not. Mr. Palit appearing for the Petitioners contends that there is no statement made by the accused while in custody in pursuance of which the recovery was made and, therefore, it cannot be admitted into evidence u/s 27 of the Evidence Act. There is no dispute over the said proposition and obviously Section 27 of the Evidence Act cannot be pressed into service. But the fact that the accused led the police to his house and produced the articles which were identified by the inmates of the house to be the stolen articles would be admissible as a piece of conduct of the accused u/s 8 of the Evidence Act. u/s 8 of the Evidence Act, the conduct of any person an offence against whom is the subject of any proceeding, is relevant if such conduct influences or is influenced by any fact in issue or relevant fact whether it was previous or subsequent thereto, Mr. u/s 8 of the Evidence Act, the conduct of any person an offence against whom is the subject of any proceeding, is relevant if such conduct influences or is influenced by any fact in issue or relevant fact whether it was previous or subsequent thereto, Mr. Palit for the Petitioners urges that in the absence of any statement made by the accused while in custody within the ambit of Section 27 of the Evidence Act, the fact of mere production of the stolen articles from the house would not at all be admissible in evidence. I do not find any substance in the said contention of Mr. Palit, the learned Counsel for the Petitioners. There is a clear distinction between conduct of an accused coming within the ambit of Section 8 and statement to a police officer while in custody in consequence of which certain incriminating articles were discovered, coming within the ambit of Section 27 of the Evidence Act and this distinction has been brought out in the case of Prakash Chand Vs. State (Delhi Administration). It was observed by the Supreme Court in the said case that the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles of weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, u/s 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act. Then again u/s 114 of the Evidence Act, the Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. Illustration (a) to Section 114 of the Evidence Act is clear on this aspect. In this view of the matter, it is now to be considered as to what is the offence committed by accused Jogesh. 7. In my opinion, on the basis of recovery of the stolen articles from the house of the accused on being produced by him while in custody, it would be difficult to sustain a conviction u/s 395, but he can be very well convicted u/s 411, Indian Penal Code. 7. In my opinion, on the basis of recovery of the stolen articles from the house of the accused on being produced by him while in custody, it would be difficult to sustain a conviction u/s 395, but he can be very well convicted u/s 411, Indian Penal Code. I would, therefore, set aside his conviction u/s 395 and convict him u/s 411, Indian Penal Code and sentence him thereunder to undergo rigorous imprisonment for two years. 8. In the ultimate result, therefore the conviction of Petitioner Karunakar is set aside and he is acquitted of the charge conviction of Petitioner Jogesh u/s 395 is set aside and instead, he is convicted u/s 411, Indian Penal Code and is sentenced to undergo rigorous imprisonment for two years. The Criminal Revision is accordingly allowed in part. Final Result : Allowed