SI. JAFRI, J. ( 1 ) ANWAR and Ghaseeta have come up in appeal against their conviction under section 395 I. P. C. and sentence of 5 years R I. each recorded by Shri B. K. Sharma 4th Additional Sessions Judge, Bijnor by his judgment and order dated 25. 1. 1977 in Sessions Trial No. 19 of 1979. ( 2 ) THE case of the prosecution is that in the night intervening between 9/10. 6. 1975 at about 12. 30 a dacoity was committed at the house of Hanif complainant in village Mohammed Alipur, P. S Afzalgarh District Bijnor by 10-15 persons and the dacoits succeeding in taking away looted property consisting of ornaments and watches. The case of the prosecution is that the complainant Hanif was asleep in the court-yard of his house alongwith Hamid P. W. 2 and Akhtar P. W. 4. Upon the hue and cry of the women-folk of the house, the complainant Hanif was awakened at about 12 30 A. M. and he noticed one dacoit on the roof having gun in his hand. There were in all 10-15 dacoits, some were inside the house of the complainant and some were outside the house. The complainant some-how managed to sneak out of his house and raised the alarm whereupon, Sharif Ahmad, Qifayat etc. positioned themselves on the southern side of the house while Haji Tufail, Khalil, Ameera P. W. 5, Akhtar P. W. 4, and Hamid P. W. 2 collected on the northern side of the house of the complainant. Amongst them, Haji Tufail, Ameera and Akbar had torches with them and -they flashed their torches whereupon dacoits, came out of the house and they were recognised in the light of the torches and. also in the light of Thatch (Chapar) which was set on fire by Khalil Khan. The thatch was on the eastern side of the house of the complainant Dacoits ran towards the south alongwith the looted property consisting of watches and ornaments. One of the dacoits opened fire, which caused injuries to Sharif, Akhtar and Jameel. However, Hanif complainant, Ameera Smt. Hamid caught hold of one of the dacoits on the spot after giving beating to him The remaining dacoits succeeded in running away from the place of occurrence. The apprehended dacoit gave out his name as Hamid and stated that he was procured for dacoits by one Nandan Shah. However, Hanif complainant, Ameera Smt. Hamid caught hold of one of the dacoits on the spot after giving beating to him The remaining dacoits succeeded in running away from the place of occurrence. The apprehended dacoit gave out his name as Hamid and stated that he was procured for dacoits by one Nandan Shah. After the occurrence, the complainant alongwith the injured dacoit Hamid and other persons of his village left for the police station but on way to police station, the apprehended dacoit breathed his last. On reaching the police station, the complainant Hanif dictated an oral report of the occurrence to the Head constable Laxman Singh at 2. 30 A. M. The Head constable prepared a chik report and also registered a case u/s 395 I. P. C. in the General Diary of the Police Station against 10 to 15 unknown dacoits. It was also dictated by Hanif in his report that the apprehended dacoit had given out his name as Hamid and he had confessed before them that he longwith others had been procured for dacoity by one Nandan Shah. The injured persons Zameer; Sharif Ahmad and Akbar were sent to the dispensary where their injuries were examined. Dr. R. B. Saxena Medical Officer of Government Hospital Sherkoot examined Zameer Ahmad at 6. 45 A. M. on 10-6-1975. His injury report is Ex. Ka 10. ( 3 ) DR. Saxena also medically examined Akhtar at 7. 30 A. M. and found the following injury on his person. Lacerated wound 5 cm x 1. 5 Cm x bone deep on top of head 13 cm above right ear. ( 4 ) DR. Saxena also medically examined Sharif Ahmad on 10. 6. 1975 at 8 A M. and had found injuries on his person. The injury report is Ex. Ka 9. ( 5 ) THE Investigating officer prepared inquest on the dead body of the deceased dacoit Hamid and had found 10 ante-mortem injuries on his person consisting of lacerated, incised, punctured swelling and multiple abrasions. In the opinion of the Doctor, the cause of death was shock due to fracture of ribs left-side with laceration of wounds. ( 6 ) THE investigation of the case was taken by Bhim Singh P. W 8. , who interrogated the witnesses at Police Station Afzal Garh and thereafter, he went to Alipore Chauhar and examined the rest of the witnesses. ( 6 ) THE investigation of the case was taken by Bhim Singh P. W 8. , who interrogated the witnesses at Police Station Afzal Garh and thereafter, he went to Alipore Chauhar and examined the rest of the witnesses. He inspected the site of occurrence and prepared the site-plan Ex. Ka 14. He also found the ashes of partly burnt Thatch (Chhappar) and collected the same. He also found empty cartridge Ex. 2 and chopped piece (Ext. 3) of gun and took the same in his possession. He sealed the ashes in a cloth Ex. 4. He also prepared a joint memo (Ext. Ka. 15) of the above mentioned articles found by him at the place of occurrence. He also inspected the torches of Khalil, Haji Tufail and Akhtar, which were found in working order and after preparing the memo Ex. Ka 2. he handed back the torches to Khalil, Haji Tufail and Akbar. ( 7 ) DURING investigation, he arrested Nandan Shah and Anwar appellants on 11-6-1975 and made them Baparda. He brought them to police station where they were kept Baparda in the lock-up and next day they were lodged in the District Jail in Baparda condition. Ghaseeta appellant was apprehended on 22-6-1975 at about 6. 30 PM. from near the culvert of the canal on the road leading to village Chand Khera by constables Nane Singh and Talib. After the arrest, Ghaseeta appellant was also made Baparda and he was put inside the Lockup of Police Station Civil Lines Moradabad. Next day, he was taken out from the lock-up and produced before the Magistrate in the Court in Baparda condition and under the orders of the Magistrate concerned, he was taken to Bijnor by constable Nanhe Singh of Police Station Civil Lines. Nanhe Singh constable escorted the appellant Ghaseeta to Police Station Kotwali Bijnor in the evening and be was kept Baparda in the lock up of Police Station Kotwali, Bijnor. Next morning Ghaseeta was taken out again from the lock-up of the said police station and lodged in the District Jail Bijnor by constable Nanhe Singh in Baparda condition. ( 8 ) APPELLANT Anwar, Ghaseeta and other suspects including Nandan Shah were subjected to identification proceeding in Jail conducted by Shri S. K. Sharma P. W. 7 S. D. M. on 18-7-1975 and they were correctly picked up by the witnesses. ( 8 ) APPELLANT Anwar, Ghaseeta and other suspects including Nandan Shah were subjected to identification proceeding in Jail conducted by Shri S. K. Sharma P. W. 7 S. D. M. on 18-7-1975 and they were correctly picked up by the witnesses. Ghaseeta was correctly identified by Hamid P. W. 2 and Tufail P. W. 3 and they committed no mistake. Anwar appellant was correctly identified by Hanif P. W. 1, Hamid P. W. 2, Tufail P. W. 3 and Akhtar P. W. 4 and out of them, Akhtar correctly picked up three suspecis and committed one mistake whereas Hanif P. W. 1, Hamid P. W. 2 and Tufail P. W. 3 did not commit any mistake. Nandan Shah was also correctly identified by more than one witnesses. ( 9 ) AFTER completing investigation. Bhim Singh P. W. 8 submitted charge-sheet Ex. Ka 17 against accused persons. The appellants alongwith Nandan Shah and others were committed in the court of sessions to stand their trial under section 395 I. P. C. but the case against Nandan Shah was separated from the case of the appellants. ( 10 ) IN support of the prosecution case 8 witnesses were examined, out of them, Hanif P. W. 1, Hamid P. W. 2, Tufail P. W. 3, Akhtar P. W. 4 and Ameera P. W. 6 were examined as eye witnesses of the occurrence. ( 11 ) HANIF P. W. 1 has narrated the prosecution case in detail. He deposed that during the night of occurrence at about 12. 30 mid-night, while he w-as asleep in his house, he was aroused from his sleep on hearing the alarm raised by the women folk of his house and noticed one dacoit standing on the roof. He also noticed 10 to 15 dacoits inside the house. He some-how managed to escape out of the house and raised hue and cry and upon his alarm, a number of persons collected on the northern side and southern side of his house. He further deposed that Khalil, in the meantime, set fire to the Chhapar (Thatch) in front of his house towards edit which generated sufficient light. He some-how managed to escape out of the house and raised hue and cry and upon his alarm, a number of persons collected on the northern side and southern side of his house. He further deposed that Khalil, in the meantime, set fire to the Chhapar (Thatch) in front of his house towards edit which generated sufficient light. He further deposed that out of the persons collected, Haji Tufail, Akbar and Ameera carried torches which they flashed towards the dacoits whereupon dacoits came out of the house and one of the dacoits opened fire which resulted in injuries to Zameer, Akhtar and Sharif. Thereafter, they succeeded in capturing one dacoit by giving bearing to him and on being questioned, he disclosed his name as Hamid. The apprehended dacoit had also confessed before them that he and others had been procured for committing dacoity by one Nandan Shah. After the occurrence, he alongwith other injured and apprehended dacoit Hamid started for the police station Afzal Garh but on way to Police station, the apprehended dacoit Hamid breathed his last. He further stated that on reaching the Police Station, he dictated his oral report of the incident to Head constable at 2. 30 A. M. on 10-6-1975. The injured. Zameer, Sharif and Akhtar were sent to Government Hospital Sherkoot where their injuries were examined. The witness had also identified Ghaseeta and Anwar in the Court stating that he had identified them in the test identification conducted in Jail. According to the witness, he did not know the appellants from before the occurrence and he had seen them only of the time of commission of the dacoity and thereafter the test identification in the District Jail He also deposed that in between the period, he never saw them. Hanif is a natural witness as the dacoity had been committed at his house. His statement finds corroboration from Hamid P. W. 2 who is an injured witness. Besides Hamid, his statement is also lent Tcorroboration by Tufail. Akhtar and Ameera Hamid PW. 2, Tufail P W. 3, and Akhtar P. W. 4 have also jdentified the appellants correctly in Jail without any mistake. They have also picked them correctly in the court. According to them they did not know the appellants from before the occurrence. Besides Hamid, his statement is also lent Tcorroboration by Tufail. Akhtar and Ameera Hamid PW. 2, Tufail P W. 3, and Akhtar P. W. 4 have also jdentified the appellants correctly in Jail without any mistake. They have also picked them correctly in the court. According to them they did not know the appellants from before the occurrence. Ameera P. W. 5 also identified the appellant in the court and Claimed that he identified the appellants in the test identification in Jail also. However, from a perusal of test identification memo Ex. Ka 13 and also from the statement of Sri S. K. Sharma, S. D. M. P. W. 7 Ameera did not participate in the identification proceedings of the appellants in Jail. As such, he does not appear to be a witness of good antecedents and his evidence cannot be relied upon against the appellants in the absence of corroboration by his identification in the parade in jail. ( 12 ) FROM the statements of the above witnesses it becomes abundantly clear that a dacoity was committed at the house of Hanif on the fateful night. ( 13 ) WITH regard to the arrest of Ghaseeta appellant, the learned counsel for the appellant contended that Ghaseeta appellant was arrested on 22-6-1975 at about 6. 30 p. m. from near the canal culvert on the road leading to Chand Khera Village by constables Nanhe Singh and Talib of Police Station Civil. Lines, Moradabad. With regard to the arrest of Ghaseeta appellant, the only evidence that has come in the case is in the form of an affidavit sworn by Nanhe Singh constable. According to the contents of affidavit filed by constable Nanhe Singh, Ghaseeta appellant was arrested by him and constable Talib at about 6. 30 P. M. on 22-6-1975 on the culvert or Canal road leading to village Chand Khera. After arresting appellant Ghaseeta, he was made Baparda and brought to Police Station, Civil Lines, Moradabad in Baparda condition h the evening and he had put him inside the lock-up Next day, he took out Ghaseeta appellant from the lock up of the police station in Baparda condition and produced him before the Magistrate at Moradabad and under the order of the Magistrate he took Ghaseeta in Baparda condition to Bijnor where he lodged him at Police Station Kotwali in the lock up in the evening in Baparda condition. Next morning, he again took out Ghaseeta appellant from the Lockup of the Police station Kotwali, Bijnor in Baparda condition and admitted him to District Jail Bijnor in Baparda condition. It was contended by the learned counsel for the appellant that there is no evidence on record either oral or by way of an affidavit on behalf of the prosecution to show that Ghaseeta appellant remained through-out Baparda at Police Station Kotwali in Bijnor. In a case of dacoity, where the sole evidence against the accused hinges on identification, a burden lies on the prosecution to establish satisfactorily that after the arrest, the accused was kept Baparda till the time of his lodging in District Jail. In the present case, factually, there is no evidence to show that Ghaseeta appellant was kept strictly Baparda at Police Station Kotwali, Bijnor in the night intervening 22/23 June, 1975. Under the circumstance, it will be quite unsafe to place credence on the identification evidence as the possibility that Ghaseeta appellant had been shown to the prosecution witnesses at Police Station Kotwali Bijnor, cannot be ruled out. Moreover, there is no explanation on the record as to why Ghaseeta appellant was brought from Moradabad to Bijnor after his arrest. Under the circumstance, the case against Ghaseeta appellant is tainted with grave doubts and he therefore, deserves to be acquitted. Once the investigation in the case is found to be tainted, reliance cannot be placed on the evidence of identification for the conviction of the accused. It was contended by the learned counsel for the appellant Anwar that the learned Magistrate Sri S. K. Sharma, P. W. 7 who conducted the identification proceedings in Jail did not ensure adequate precaution to conceal one of the eyes of the appellant during identification proceedings. It finds mention in the identification memo itself by Sri S. K. Sharma P. W. 7 that one of the eyes of the accused was of smaller size than the other. The Magistrate further states in the memo that he had instructed the appellant to shut his eyes and also directed the other under trials to follow suit at the time of identification proceedings. The Magistrate further states in the memo that he had instructed the appellant to shut his eyes and also directed the other under trials to follow suit at the time of identification proceedings. The aforesaid precaution enforced by the Magistrate, to conceal identification by eye of Anwar appellant which was admittedly of smaller size was not at all adequate and satisfactory, Even if eyes were closed, the smaller eye would have been conspicuous by its visibility rendering it easier for the witnesses to identify the accused in the identification proceedings. Under the circumstance, it will be unsafe to place reliance on the testimony of the eye-witnesses. Anwar appellant under the circumstances, also deserves to be given the benefit of doubt as adequate precaution to conceal the smaller eye of the appellant Anwar was not taken by the learned Magistrate during the test identification proceedings. ( 14 ) IN the result, the appeal is allowed. The conviction and sentences recorded by the trial court against the appellants Ghaseeta and Anwar are set aside. The appellants are on bail. They need not surrender. Their bail bonds are discharged. .