Judgment 1. The two appellants named above have been convicted under S. 396 of the Indian Penal Code (hereinafter referred to as "the Code") and they have been sentenced to suffer imprisonment for life. 2. The case against them arose on the statement of P.W. 7 Babulal Pd, made at police station Ghosi in the district of Gaya (presently district of Jahanabad.) 3. The occurrence took place on 14-12-79 at about 11.30 P.M. in Village-Paraman which falls in police station Ghosi. It is stated that a few dacoits including these two appellants raided the house of the informant P.W. 7 Babulal who was then sleeping in a Dalan. He woke up on hearing the sound of a few persons scaling over and jumping in his Angan. It was a winter season and he had covered himself in the bed with a quilt (Rejai). He claims that he peeped through removing the quilt a bit and in the light of the torches flashed by some of the dacoits he identified the two appellants Shayamdeo Singh and Suresh Singh both belonging to Village-Kewla under the same police station Ghosi. He further identified the two other accused named Birju Kahar and Dhanesh Sharma. Birju is an absconder and Dhanesh Sharma was not sent up for trial. The reasons thereof have not been brought in court. 4. The police arrived in the village at about 6 A.M. in the morning and recorded the fardbeyan of Babulal on the basis of which an FIR was drawn up and the case registered. It is the case of the prosecution that in course of commission of dacoity, P.W. 6 Deonandan and his son Umesh came running to the house of the informant. Umesh was ahead of his father. Looking at him, the appellant Sukhdeo fired his gun hitting Umesh who dropped down dead. The police conducted inquest over the dead body and despatched it to hospital for post mortem examination. After investigation, police submitted charge-sheet and the two appellants were thus, but on trial. 5. Before we discuss the evidence regarding the merit of the case, we would like to record here that the police officer who investigated the case has not been examined. It was P.W.1 another police officer who finally submitted charge-sheet and the evidence of this witness needs no discussion. Even the doctor who conducted post mortem examination was not brought in court. It was P.W.1 another police officer who finally submitted charge-sheet and the evidence of this witness needs no discussion. Even the doctor who conducted post mortem examination was not brought in court. The prosecution therefore, took steps to get the post mortem report exhibited in court in evidence. It has been marked as Ext.2. The case diary written by the investigating officer has also been proved and marked as Ext.3 and the inquest report has been, marked as Ext.4. These documents have been proved by P.W.8 who is the clerk of an advocate practicing in the court at Jahanabad. We refrain ourselves in making any comments as to how these documents were proved in evidence through an advocate clerk but we must state that such practice should be depricated. Since the counsel for the appellant did not attack before us the factum of commission of dacoity, we were not addressed with regard to admissibility of these documents. However, counsel for the appellant have vehemently attacked the factum of identification and consistent argument has been made, in both the appeals, that in the circumstances referred to in the case there was absolutely no possibility of any identification and only the inmates of the house have come in court to speak about and their evidence on the question of identification is not worthy of credence. 6. Prosecution has examined 8 witnesses, out of whom P.Ws. 4,5,6 and 7 claimed to be eyewitnesses. They have deposed in court to identify these two appellants as discussed above. P.W. 7 is the informant on whose statement the case was registered. 7. The first eyewitness examined in the case is P.W. 4. She is the daughter of the informant. She is major and perusal of her statement indicates that she is quite mature having full understanding. She has said that she saw these two appellants for the first time only at the time of commission of dacoity. It is quite clear that she did not know them from before. In this circumstance, it was normally expected for the prosecution to get the T.I. parade conducted. It is also surprising that how could she know and gave the names of two these appellants when she-saw them for the first time at the time of the occurrence. It is quite clear that she did not know them from before. In this circumstance, it was normally expected for the prosecution to get the T.I. parade conducted. It is also surprising that how could she know and gave the names of two these appellants when she-saw them for the first time at the time of the occurrence. This creates further doubt in her evidence when she could pick up and identify these two appellants by their names in court. Element of tutoring appears to be there. Another witness on the point of identification is P.W. 5 Sukhdeo Mahton. It will again be pertinent to note that he has got a separate residence close to the house of the Informant, Babulal. He is the cousin of the Informant. It is the case of the prosecution that the miscreants entered into his house also and committed dacoity. This witness claims identification of the appellants by voice. Identification by voice is a weak type of evidence. Prosecution could not show any circumstance to hold that this witness had any occasion earlier to talk to these accused or to hear his voice, making it possible for him to identify either of them by voice, which he heard at the time of commission of dacoity. It has also been pointed out that he had contradicted himself before the police officer so far, this statement is concerned. In the giving circumstance, it would not be safe to rely on the statement of P.W. 5 as well. So far, P.W. 6 Deonandan, is concerned he is brother of the informant (P.W. 7) Babulal. He too has got a separate house. It is his case that on hearing hulla, he ran to the house of Sukhdeo with his son Umesh. Umesh was moving ahead of him. The case is that, Shayamdeo fired his gun hitting Umesh which resulted in his death. P.W. 6 Deonandan has stated in court that soon after getting injury, Umesh had told him that it was the appellant Shayamdeo, who had fired at him. This witness has said in his evidence that he could identify both accused appellants Shayamdeo and Suresh in the light of the torch flashed by some of the dacoits at the time of commission of dacoity. This witness has said in his evidence that he could identify both accused appellants Shayamdeo and Suresh in the light of the torch flashed by some of the dacoits at the time of commission of dacoity. He further added the names of other two accused Birju and Dhanesh, regarding whom we have already seen that one is absconding and the other was not charge-sheeted. We feel reluctant to accept the evidence of this witness as well, Particularly because it is the consistent case of the prosecution that miscreants came to the Dalan where P.W. 7 was sleeping. The dacoits had entered scaling over the wall and jumped in the Angan. P.W. 7 has said that out of fear he ran away and in that process, he could identify dacoits, naming these two appellants. He further said that none of the accused came to the Dalan. He had identified when the door was opened by the miscreants entering into the house. The dead body was found lying in a lane close to the house of Sukhdeo (P.W. 5). Therefore, in this circumstances, it is difficult to accept the prosecution version that witnesses could have been able to identify when none came out in the lane where Umesh was done to death and the dead body lying, inasmuch as, if the firing was done in the lane there was no occasion for P.W. 6 to identify when the dacoits were in the Dalan and in the house of the Informant-Babulal and some other dacoits in the house of P.W. 5 Sukhedeo Mahton. None of the witnesses except P.W. 6 has spoken about the dying declaration made by his son Umesh. P.W, 7 Babulal is the brother of Deonandan who does not say that he had heard the deceased Umesh giving any statement regarding identification. He has only said in the FIR that he heard about it from P.W. 6 Deonandan. The other witnesses P.W. 4 is the daughter of the informant. She does not speak that Umesh had made any such statement before his death. Apart from it, trial court also did not discuss in the judgment impugned regarding the aforesaid dying declaration. This having being kept out of consideration. It appears quite unsafe to accept the statement of P.W. 7. There are other reasons as well to discard the evidence. She does not speak that Umesh had made any such statement before his death. Apart from it, trial court also did not discuss in the judgment impugned regarding the aforesaid dying declaration. This having being kept out of consideration. It appears quite unsafe to accept the statement of P.W. 7. There are other reasons as well to discard the evidence. He has admitted in court that after departure of the dacoits, he gave out that some one of the dacoits killed his son, but did not state who was he and that he could identify them. These circumstances give sufficient to falsify the claim of the witness that they could actually identify any one at the time of commission of dacoity and the possibility of naming them later out of animosity on the arrival cannot absolutely ruled out. Similar is the fate of P.W. 7, the Informant. It is true that he has named these two appellants in the F.I.R. He has said that he identified them in the light of torch. He has also said that he could know the name even through his brother P.W. 6 Deonandan, which we have already discussed above while discussing the evidence of Deonandan. So far, the evidence of P.W. 7 Babulal is concerned, he has admitted that on hulla Villagers including the Chaukidar and Dafadar arrived at the spot, but he has admitted in clear terms that he did not gave out the name of any one of the dacoits, whom he had seen and identified, to any one of the villagers and not even to Chaukidar and Dafadar, who came soon after the occurrence. The counsel for the State Sri G. P. Jaiswal has no doubt submitted that there are material in the police diary and perusal thereof would amply prove the complicity of these two appellants in the crime. But the learned Advocate has rightly commented the manner in which the prosecution has been conducted the case in the court below. In other words it is really regrettable such evidence was not brought on record in court and the Mukhiya an independent person was also not examined to testify or to corroborate any of the witnesses naming the appellants soon after the occurrence. In other words it is really regrettable such evidence was not brought on record in court and the Mukhiya an independent person was also not examined to testify or to corroborate any of the witnesses naming the appellants soon after the occurrence. Needless to say that the inadmissible portion of the case diary, which has been put on the record could not be used as weapon in the hand of the prosecution to convict the accused. Direct and positive evidence should have been brought in court, proving the guilt against the accused showing their complicity in the crime. Evidence as discussed above on the point of identification appears to be quite shaky. Doubts creep in the mind of the court to hold affirmatively that these two appellants were known to the prosecution witnesses and in such a torn evidence, it is not safe to uphold the conviction. On the part of the prosecution to get a T.I. parade conducted, is another shortcoming in the case. The case therefore, is failing due to lack of concrete and reliable evidence on the question of identification. It will be advantageous to add here that it is not the case of prosecution that there was any other light in the house of either Babulal or Sukhdeo Mahton, where dacoity was committed. None of the witnesses had any torch with him to facilitate identification. Identification in the torch flashed by the accused in the present case, and in the manner as stated by the witness do not inspire confidence. In the circumstances both the appellants are entitled to benefit of doubt. 8. In the result the appeal succeeds. The order of conviction and sentence passed against them by the court below is set aside. The appellants are in jail and therefore, it is hereby directed that they may be released forthwith, if not required in any other case.