JUDGMENT B.L. Loomba, J. - This is an appeal against the judgment and order dated 21st March, 1978, of Shri B.K. Srivastava, the then 1st Additional Sessions Judge, Rae Bareili whereby the appellant was convicted under Sect ion 396 of the Indian Penal Code and sentenced to undergo life imprisonment in Sessions Trial No. 311 of 1974. This Sessions Trial was consolidated with another Sessions Trial No. 74 of 1974 State v. Jai Singh. Both these Sessions Trials relate to an armed dacoity which took place at the house of Ram Naresh Singh in village Jafrapur, Police Station Jagatpur, district Rae Bareli at about 9 p.m. on 20th April, 1972, three persons lost their lives and one received injuries during the course of the commission of this dacoity besides the property of the inmates of the house having been looted. First information report of this crime was lodged by Ram Naresh Singh on 21st April, 1972 at 10 a.m., it Police Station Jagatpur. Distance of he police station from the village in question is about 12 miles. Five persons were named in the first information report they being Shitla Bux Singh, Rameshwar Singh, Jai Singh and Ram Lakhan Singh. According to the prosecution case these named rive parsons alongwith four unknown persons entered the house of the complainants when Shiv Bahadur Singh father, Ram Jas Singh brother, Shrimnti Lekhpati, the mother respectively of the complainants were taking their food in the courtyard of the house and a lantern was lit giving sufficient light; other females of the house were also there. The complainant Ram Naresh Singh alias Bengali and his father Udai Raj Singh were sitting at the roof with the idea to enjoy open air in summer season. Four of the said five persons were carrying pistols while accused Jai Singh was armed with a double barrel gun and the four strangers were wearing Khaki uniform. Jai Singh and Lalloo Singh fired at Shiv Bahadur Singh killing him instantaneously. Ram Jas Singh was shot dead by Shitla Bux Singh, Shrimati Lakhpati was dragged outside the room and she too was shot dead while Shrimati Ram Kumari received gun shot injuries. This ghastly scene, accordingly to the prosecution, was witnessed by the complainant and his father Udai Raj Singh from the top of the house. Ram Jas Singh was shot dead by Shitla Bux Singh, Shrimati Lakhpati was dragged outside the room and she too was shot dead while Shrimati Ram Kumari received gun shot injuries. This ghastly scene, accordingly to the prosecution, was witnessed by the complainant and his father Udai Raj Singh from the top of the house. The complainant was carrying his torch which was flashed and they were in a position to properly see the unknown persons also. On the alarm raised by the complainant and other inmates of the house village people assemble outside the house. It was a moon-lit night. A heap of Payal which was lying at a distance of about 12 or 13 paces from outside the main door of the house was set on fire by the complainant who could manage in the process to move out of the house from the back- door. After ransacking the house and looting away the ornaments and other valuables, the dacoits managed to run away and they were seen by the witnesses who had assembled outside the house, some of them being named as Ram Kishan, Rahim Bux and Naurang. After investigation of the case, four out of the five named accused were put on trial in Sessions Trial No. 176 while the fifth one, namely, Jai Singh absconded. The District and Sessions Judge, Rae Bareli by his judgment and order dated 14th April, 1973, convicted all the four accused under Section 396 of the Indian Penal Code and sentenced them to death. They were also convicted and sentenced under Sections 148, 302/149, 395 and 324 read with Section 149 of the Indian Penal Code. Criminal Appeal No. 1086 of 1973 filed by the all the four accused was dismissed by this court on 1st January, 1974. This appeal was allowed by their end order, dated 6th May, 1977, and all the four accused appellants were given benefit of doubt and were acquitted. In the meantime, Jai Singh was arrested and committed to the Court of Session and was put on trial in Sessions Trial No. 74 of 1974 as stated already. This appeal was allowed by their end order, dated 6th May, 1977, and all the four accused appellants were given benefit of doubt and were acquitted. In the meantime, Jai Singh was arrested and committed to the Court of Session and was put on trial in Sessions Trial No. 74 of 1974 as stated already. In so far as the present appellant is concerned, the prosecution case against him is that he was arrested in the night of 11th August, 1972, by Station Officer, Faialganj, Kanpur in Crime No. 275 of 1972 under Section 394/397 of the Indian Penal Code relating to Kanpur district. He was made in pardah on the spot and brought to the police station and during the course of interrogation in regard to the said crime, the accused admitted his complicity in the dacoity with which we are concerned in this appeal. The present appellant as such is one of the four strangers who are said to have accompanied the five named accused in committing the above mentioned dacoity. The transfer of the present appellant to District Jail, Rai Bareli was delayed because of his arrest and investigation in regard to Crime No. 275 of Kanpur district. Eventually, he as transferred to District Jail Rae Bareli on 2nd July, 1974. At the identification parade held on 26th August, 1974, lie was correctly identified by two witnesses, namely, Naurang and Rahim and they did not commit any mistake. On the basis of two good identification, the present appellant was convicted by the Additional Sessions Judge as aforesaid. After hearing the learned counsel for the appellant and the learned State Counsel, we find it difficult to maintain the conviction against the appellant. His conviction is based on the testimony of two witnesses, namely, Rahim Bux P.W. 5 and Naurang Singh P.W.6 gathering corroboration from their performance at the test identification. It is to be noticed that Rahim Bux had, appeared as one of the prosecution witnesses in Sessions Trial No. 176 of 1972 against the four of the five named accused in the first information report relating to this crime. As mentioned above, conviction against the said four accused as maintained by this court but their Lord- ships of the Supreme Court allowed their appeal (Criminal Appeal No. 423 of 1974) by judgment dated 6th May, 1977. As mentioned above, conviction against the said four accused as maintained by this court but their Lord- ships of the Supreme Court allowed their appeal (Criminal Appeal No. 423 of 1974) by judgment dated 6th May, 1977. Benefit of doubt was given to all the four accused d it was observed by their Lordships that we are unable to affirm the conviction on oral testimony of the aforesaid five witnesses and to hold that the prosecution has established the charges' against the accused beyond reasonable doubt. Testimony of Rahim Bux was rejected on the ground that was admittedly, inimical towards the used. An observation was recorded that of the neighbouring witnesses only Rahim Bux who was inimically disposed towards the accused was selected to appear as prosecution witness. Two servants of the complainant, namely, Pancham and Ghurai were stated to have been standing at the mairgate of the house at the time when dacaits entered the house the failure of the prosecution to examine these witnesses was noticed by their lordships of the Supreme Court as a discrediting feature of the prosecution case. The very manner of the commission of the crime as represented through the first information report was treated to be not free from reasonable doubt, in that situation it is difficult to place reliance on the testimony of the two witnesses relied upon by the learned Sessions Judge in this case for acceptance of the prosecution story. Another feature to be noticed is that the trial of two accused, the present appellant Ram Sumer Singh and the absconding accused Jai Singh was consolidated and the case was disposed of by common judgment, dated 21st March, 1978, which is subject-matter of this appeal before us. While dealing with the case against Jai Singh it was rightly observed by the learned Sessions Judge that the genuineness of the first information report was doubted by their lordships of the Supreme Court and for that reason the testimony of the additional within examined in the case against Jai Singh was discarded as undependable. When the statement of Naurang Singh has been rejected as against Jai Singh for obvious reasons, there remained hardly any justification for acceptance of the statement of the same witness as against the present appellant Ram Sumer Singh. When the statement of Naurang Singh has been rejected as against Jai Singh for obvious reasons, there remained hardly any justification for acceptance of the statement of the same witness as against the present appellant Ram Sumer Singh. Rahim Bux also having been held earlier to be an interested witness and his testimony having been discarded, it is obviously difficult to place reliance on the statement of these two witnesses for purposes of recording conviction against the assent appellant. The value of their testimony not only stands strongly demolished by the rejection of the main case as set up through the first information report but also there exist certain other factors sufficient to impair the credit of the prosecution case. There was inordinate delay in the holding of the test identification there could be valid explanation for the delay in the transfer of the appellant from Kanpur to Rai Bareli Jail but the inordinate delay caused in holding the test identification after the transfer of the accused to Rai Bareli Jail on 2nd July, 1974. In defence two witnesses have been examined, both residents of village Jafrapur to testify that the present appellant Ram Sumer Singh used to visit the house of Jai Singh and for that reason he was known to the identifying witnesses from before. On consideration of the matter as a whole, it is wholly unsafe to place reliance on the testimony of the two witnesses, namely, Rahim Bux and Naurang Singh merely on the ground of their not having made any mistake in identifying the appellant at the test identification or in the court. The prosecution, to our mind, has failed to establish the case beyond reasonable doubt and the appeal merits to be allowed. The appeal is, accordingly, allowed and the conviction of and the sentence awarded to the appellant under Section 496 of the Indian Penal Code are set side. He is on bail and need not surrender to his bail bonds which shall stand discharged.