JUDGMENT : B.K. Behera, J. - The five appellants with four co-accused persons stood trial in the Court of Mr. S. S. Sahani, Assistant Sessions Judge, Baripada, being charged under Sections 457 and 395 of the Indian Penal Code (for short the 'Code'). The appellants and the other culprits, it was alleged, committed house-breaking by entering into the dwelling house of Himanshu Sekhar Dey in his absence during the night of December 15/16, 1981, at about 2.00 A. M. and committed dacoity by assaulting one of the inmates and two neighbours and removing a number of articles belonging to Himanshu Sekhar Dey. On the basis of first information report lodged by the wife of Himanshu Sekhar Dey, as per Ext. 4, investigation was taken up in the course of which the appellants and some other suspects were arrested on December 19, 1981, the persons who had sustained injuries at the hand of the culprits were medically examined, witnesses were examined, seizures of some articles alleged to have been recovered on the basis of the statement said to have been made by the appellant Kala Singh were effected, some hairs of the appellant Kala Singh found on his Lungi left by him while escaping were examined by the scientific expert and a test identification parade was held. On the completion of investigation, a charge-sheet was placed against the appellants and the co-accused persons. 2. The plea of the appellants and the co-accused persons was one of denial and false implication in the case. 3. While the prosecution had examined fifteen witnesses to establish its case, the appellants and the co-accused persons had not examined any witness in their defence. 4. On a consideration of the evidence, the learned trial Judge found the appellants to be guilty of the charges u/s 457 and 395 of the Code, convicted them and sentenced each of them to undergo rigorous imprisonment for a period of three years u/s 457 of the Code and to undergo rigorous imprisonment for a period of eight years u/s 395 of the Code with a direction that the sentences would run concurrently. The co-accused persons who stood trial with the appellants were acquitted of the charges. 5. I have heard Mr. S.C. Mohapatra for the appellants who has challenged the order passed against the appellants in respect of both the offences as unfounded. The co-accused persons who stood trial with the appellants were acquitted of the charges. 5. I have heard Mr. S.C. Mohapatra for the appellants who has challenged the order passed against the appellants in respect of both the offences as unfounded. The learned Standing Counsel has supported the order of conviction u/s 395 of the Code. The learned counsels for both the sides are agreed that the order of conviction u/s 457 of the Code cannot be sustained in the absence of any proof that the appellants had committed lurking house trespass or house-breaking. 6. As has been submitted at the Bar, the order of conviction recorded against the appellants u/s 457 of the Code cannot be sustained in law. Section 443 of the Code defines lurking house-trespass and Section 445 of the Code defines house-breaking. In the instant case the appellants and the co-accused persons were charged of house-breaking In the absence of proof that a person has committed house-trespass in any of the six ways mentioned in Section 445 of the Code, this section can have no application and consequently, no order of conviction u/s 457 of the Code can be recorded. It has been noticed in a large number of cases that some Courts of Session and judicial Magistrates, while finding the accused persons guilty of the charge of dacoity, robbery or theft, also record convictions for lurking house trespass or house-breaking as a matter of course without proper application of minds as if the commission of dacoity, robbery or theft would lead one to a sure conclusion that the accused persons had also committed house-breaking or lurking house-trespass. The offence of committing house-breaking or lurking house-trespass is quite distinct from the offence of commission of dacoity, robbery or theft. Each is not a corollary of the other. In the absence of proof of house-breaking or lurking house-trespass, no person is liable to be convicted u/s 457 of the Code although he may be convicted for the commission of dacoity, robbery or theft. As the prosecution has not established that the appellants had committed house breaking, the order of conviction and the sentences passed against each c of the appellants u/s 457 of the Code must have to be set aside. 7. Coming to the charge of dacoity, it is not disputed at the Bar that dacoity had been committed in the house of the victim. 8. 7. Coming to the charge of dacoity, it is not disputed at the Bar that dacoity had been committed in the house of the victim. 8. Besides the evidence of identification of the appellants, as deposed to by the first-informant (P. W. 3), her son (P. W. 12) and her two neighbours (P. Ws. 4 and 13) and some recoveries, reliance had been placed by the prosecution on the suspicious movements of the appellants with others when they were found getting down from a bus in a body at Amarda Road at about 7.00 to 8.00 A. M. on December 16, 1981, which was detected by the Assistant Sub-Inspector of Police at Amarda Road (P. W. 6). There is no evidence either of the driver of the bus or that of the conductor that these persons had come together to the bus and had purchased tickets together. Even assuming that the conduct of the some of the appellants in this regard was suspicious, in the absence of the other evidence pointing to their guilt, no reliance ran be placed by the prosecution on such conduct to bring home a charge of dacoity. 9. Some articles alleged to have been removed during the commission of dacoity had been recovered from near a bush on being pointed out by the appellant Kala Singh, as the prosecution sought to show, by the evidence of the Investigating Officer (P. W. 15) and the witness to the seizure (P. W. 10). As rightly urged on behalf of the appellant, the exact statement which had allegedly led to the discovery had not been recorded by the investigating police officer. Another important feature which cannot be lost sight of is that none of the articles had been produced in the Court and identified by the owners as belonging to them. In such circumstances, recoveries of some articles alleged to have been stolen from an accessible place cannot be taken as a circumstance in support of the other evidence against this appellant. 10. It is in evidence that while escaping from the clutches of P.Ws.4 and 13 who had caught hold of him, the appellant Kala Singh escaped while wearing an under-garment leaving the Lungi on the spot which contained some pieces of hairs which had been collected by the doctor in the course of investigation and which, on scientific test, were found to be of this appellant. The doctor who had collected the hairs from this appellant ought to have been, but had not been examined by the prosecution As has rightly been submitted by the learned counsel for the appellants, placing reliance on the decision of this Court reported in Mantu alias Sunil Kumar Bhuyan Vs. State of Orissa it would be possible to say that the hairs cannot belong to a particular individual/but it cannot be opined whether the hairs definitely belong to him Reliance had been placed in that reported case on an extract from 'Modi's Medical Jurisprudence and Toxicology, Twentieth Edition (Page-107). 11. There thus remains for consideration the evidence of identification in the Court and at the prior test identification parade. The witnesses in this regard are P.Ws. 3, 4, 12 and 13. 12. P. W. 3, it is important to keep in mind, had not been asked to identify the suspects at the test identification parade which had been held not long after the occurrence on January 11, 1982. The culprits were not known to P. W. 3 from before and they were thus strangers to her. As her evidence would show a bad-light having zero power was burning in the room, It was highly unlikely that with the light of such an electric bulb, she would have been in a position to mark the identifying. features of the culprits. Her identification of the appellants Kala Singh, Bhima Singh, Kishanlal Singh and Jagata Singh alias Mali for the first time in the Court recorded about nine months after the occurrence without her identification of these appellants in the test identification parade, cannot safely be accepted and would thus be rendered valueless, (see Kanan and Others Vs. State of Kerala, V.C. Shukla and Others Vs. State (Delhi Administration), : 1983 (1) Crimes 83 (S. C.) (Mohanlal Gangaram Gehani v. State of Maharashtra and Mohd. Abdul Hafeez Vs. State of Andhra Pradesh. For the aforesaid reasons, the evidence of P. W. 3 with regard to the identification of the four appellants named above ought not to have been accepted by the trial Court. 13. P. Ws. 4 and 13 had clearly and categorically stated in their evidence that they had been able to identify the appellant Kala Singh whom they had caught while he was escaping from inside the house of the victim. 13. P. Ws. 4 and 13 had clearly and categorically stated in their evidence that they had been able to identify the appellant Kala Singh whom they had caught while he was escaping from inside the house of the victim. As their evidence would show, electric light was burning for which they had been able to see him and mark his features. Both these witnesses had been assaulted and had sustained injuries on their persons, as noticed by the doctor (P. W. 5). This would indicate their presence on the spot. They had identified the appellant Kala Singh at the test identification parade conducted by the Judicial Magistrate (P. W. 7) whose evidence would indicate that it had been conducted properly and after taking necessary precautions. P. Ws. 4 and 13 had the time and opportunity to see the appellant Kala Singh and mark his features. Their evidence against this appellant in the Court does not suffer from any infirmity and would get assurance from their identification of the same culprit at the test identification parade. There is no reason as to why these two witnesses should have joined hands to falsely implicate the appellant who had escaped from their clutches having his Lungi on the spot with only an under-garment on his person. Accepting their evidence in agreement with the trial Court, I would hold that the appellant Kala Singh was one of the culprits who had committed dacoity in the house of P. Ws. 3 and 13. 14. P. W. 12 has identified in the Court the appellants Jagata Singh alias Mali, Rajendra Singh and Kishanlal Singh as the persons who had committed dacoity in their house. I have discarded the evidence of P. W. 3 relating to identification. In order to act upon the testimony of a solitary witness, his evidence of identification in a case of this nature when he must have been overawed owing to the nature of the crime and assault on his person would require careful scrutiny before its acceptance and his evidence must be found to be unimpeachable in character and completely above reproach. In my view, the evidence of P. W. 12 is not of that character and ought not to have been accepted by the trial Court. 15. This witness had testified that no lantern was burning in his bed-room. In my view, the evidence of P. W. 12 is not of that character and ought not to have been accepted by the trial Court. 15. This witness had testified that no lantern was burning in his bed-room. On his own showing, after the assault on his person, he lay unconscious and when he regained his senses, he noticed a number of persons in his house. According to him, when he first came out of his room he saw the appellant lagata Mali standing in front of the bed-room of his mother (P. W. 3) and he noticed the other two, namely, Rajendra Singh and Kishanlal Singh, in the bed-room) of his mother searching for articles and disturbing articles kept in the almirah and while he (P. W. 12) was coming out of his room, the appellants Kala Singh and Bhima Singh and another caught hold of him at the entrance. He could not say who dealt lathi blows on him. His evidence in the Court was that he was able to identify the culprits with the flash of the electric light burning in the outer courtyard and there was an electric bed-light in room of P. W. 3. He had not stated to the Investigating Officer that when he came out, he saw them standing in front of the bed-room of P. W. 3. He had stated to him that he had concealed himself behind the back of the pillars of the verandah. He had not started to the investigating police officer that he saw the dacoits and identified them in the bed-room of his mother. He had not stated in the course of investigation that he had identified the dacoits who had entered the house and that he could identify them, if shown to him. He had stated to the investigating police officer that he could not identify the dacoits who had caught hold of him because had not marked them out of fear. He had not stated to him that an electric light was burning in the court-yard. He had not stated either that the electric bed-light was burning in the bed-room of his mother (P. W. 3). He had not stated to him that an electric light was burning in the court-yard. He had not stated either that the electric bed-light was burning in the bed-room of his mother (P. W. 3). Ragard being had to these highly suspicious features in his evidence coupled with the fact that although two other appellants, namely, Kala Singh and Bhima Singh, had been put in the test identification parade in which he was an identifying witness, he had not been able to identify them, it would not be legal and proper to accept unreservedly the sole testimony of this witness that the appellants Jagata Mali, Rajendra Singh and Kishanlal Singh were amongst the persons who had committed dacoity. 16. For the foregoing reasons, I would allowed the appeal in part. The order of conviction and the sentences passed against the appellants other than the appellants Kala Singh under Sections 457 and 395 of the Indian Penal Code are set aside. The appellants Kishanlal Singh, Rajendra Singh, Bhima Singh and Jagata Singh alias Mali be set at liberty forthwith unless otherwise required to be detained. The order of conviction and the sentence passed against the appellant Kala Singh u/s 457 of the Indian Penal Code are set aside. The order of conviction and the sentence passed against the appellant Kala Singh u/s 395 of the Indian Penal Code are maintained.