JUDGMENT : G.B. Patnaik, J. - These three appeals are directed against the conviction and sentence passed against the Appellants in Sessions Trial Nos. 7/60 and 9174 of 1981. There are four Appellants of whom Appellant Niranjan Sethi has preferred Criminal Appeal No. 184/82. The three other Appellants, namely, Pratap alias Kanduri Sahu, Sk. Altab Khan and Nalu Rana had preferred one appeal from the jail which is numbered as Jail Criminal Appeal No. 45/82. Niranjan had also preferred an appeal from the jail which is numbered as Jail Criminal Appeal No. 44/82 and that is how the three appeals have been registered. These four Appellants along with one Bidyadhar Sahu were charge u/s 395 I.P.C. and stood their trial in the court of the Assistant Sessions Judge. Balasore. Accused Bidyadhar has been acquitted of the charges levelled against him, but the present four Appellants were convicted u/s 395 I.P.C. and were sentenced to undergo rigorous imprisonment for ten years and hence the appeals. 2. The prosecution case briefly stated is that in the night of 13/14-9-80 in village Malyani in the house of Bhagaban Barik, a dacoity took place and the owner of the house was not present. His eldest son Rabindra was also absent, but his wife Subarna (P.W. 7) and daughter Puspalata (P.W. 1), daughter-in-law Urbasi (P.W. 8) and field servant (P.W. 16) were present in "the house and were sleeping. In the room where Puspalata was sleeping a lantern was burning. At about mid-night, the dacoits forced their entry inside the house by scaling over the thatch and then entered into the rooms where Puspalata and Urbasi were sleeping, threatened the inmates of the house and took out the ornaments from their respective persons, Puspalata and her mother were beaten up end the house was ransacked. The field servant, Sania was also beaten up. Hearing the hue and cry raised by the inmates of the house when villagers came they were also scared by fire crackers and ultimately the dacoits decamped with the booty collected by them P.W. 1 after covering a distance of 12 kilo-metres reached Nilgiri Police Station and lodged the report which was treated as F.I.R. (Ext. 1) at 6 A.M. The F.I.R. was taken down by the Officer-in-Charge, (P.W. 19) and then the Police took up investigation. 1) at 6 A.M. The F.I.R. was taken down by the Officer-in-Charge, (P.W. 19) and then the Police took up investigation. At 6.45 A.M. the Officer, in-Charge found two persons running by the side of Nilgiri-Mitrapur road and on suspicion he began questioning them. While so questioning one of them ran away while the other was detained and some articles were recovered from his bag suspected to be the booty of the dacoity. The person so arrested was Appellant Pratap and the articles recovered from the possession of Pratap are M.Os. XI to XXXI under seizure List, Ext. 4. By interrogating Pratap, the Investigating Officer could know that the person who ran away was one Goura Rout. The Police had sent intimation regarding the dacoity to different places as a result of which people had become alert all around. The Circle Inspector, Nilagiri P.S. arrested accused Sk. Altab and also seized from him several articles under seizure list, Ext. 5, The Investigating Officer visited the spat at 2.30 P.M. and sent requisition for medical examination of the inmates who had been injured in course of the dacoity. He had requisitioned the service of the Scientific Officer who arrived at the spot and took down several thumb prints found on steel glass and on some other articles. The Scientific Officer found certain finger prints on some of the article, and took photograph of those prints. The Investigating Officer after, returning back to the Police Station, took charge of Nalu Rana who had been arrested by the Officer-in-Charge of Balasore town P.S., ( P.W. 11 ) as well as the seized articles from Nalu. The accused persons were then forwarded to the court and a prayer was made for holding Test Identification Parade of he suspected accused persons. On 15.9.80, the Sub. Divisional Judicial Magistrate was absent and, therefore, Test Identification Parade was conducted by one Jaya krisnna Mangaraj Mohapatra (P.W. 10). While in police custody accused Sk. Altab took the Police and gave recovery of certain seized articles on 16.9.80 at 7 A.M. which were seized under seizure list, Ext. 17. On 20.10.80, the Investigating Officer received a message that accused Niranjan had been detained at Baripada Police Station. While in police custody accused Sk. Altab took the Police and gave recovery of certain seized articles on 16.9.80 at 7 A.M. which were seized under seizure list, Ext. 17. On 20.10.80, the Investigating Officer received a message that accused Niranjan had been detained at Baripada Police Station. So the A.S.I. was deputed from Nilgiri to bring accused Niranjan and though after receiving Niranjan and arresting him on 24.10.80, he was forwarded to Court on 25.10.80, he then made a prayer to that Sub-Divisional Judicial Magistrate for holding Test Identification Parade of suspects those who were arrested subsequently as well as to hold Test Identification Parade of suspected articles seized. So another Test Identification Parade was held on 13.11.80 by the Magistrate (P.W. 4). A Test Identification Parade of the articles seized was also conducted in which the inmates of the house identified the articles. On completion of investigation, charge-sheet was filed. Admittedly, the dacoits were not known to the inmates of the house. The conviction of these four Appellants is based upon their identification in the Test Identification Parade as well as in the Court and also recovery of certain articles from their possession which were also identified by the inmates of the house to be their articles, in the Test Identification Parade as well as in the Court. 3. The plea of the accused persons is one of denial. 4. In support of the prosecution case, 19 witnesses were examined and none for the defence. Out of the 19 witnesses, P.Ws. 1, 5, 7, 8 and 16 are the persons who had seen the dacoits in the night of occurrence and who identified them later in the Test Identification Parade as well as in the Court; P.Ws. 4 and 10 are the two Magistrates who had conducted the Test Identification Parade of the suspects; P.W. 2 is Finger Print Expert; P.W. 3 is a seizure witness; P.W. 6 is the owner of the house who was away at Kharagpur on the date of occurrence; P.W. 9 is a seizure witness in respect of the seizure made from the possession of accused Nalu Rana under seizure list, Ext. 11; P.W. 11 was the Officer-in-Charge of Balasore Town P.S. on the relevant date; P.W. 12 is the S.D.M. 0., Nilgiri who had examined the inmates who were injured on the night of the occurrence; P.W. 13 is a post occurrence witness and also is a seizure witness in respect of the articles seized under seizure list, Ext. 8; P.W. 14 is a seizure witness in respect of the article seized from the house of accused Nalu Rana under seizure list, Ext. 17; P.W. 15 was the Circle Inspector and is a post occurrence witness; P.W. 18 is the Scientific Officer of the District Forensic laboratory and P.W. 19 is the Investigating Officer. 5. The learned Sessions Judge on consideration of the materials placed before him came to the conclusion that there was a dacoity in the night of occurrence and these Appellants were the participants in the occurrence and accordingly he convicted these Appellants. 6. Mr. P.K. Misra, the learned Counsel appearing for the Appellant Niranjan and Mr. Das, the learned Counsel appearing for the other three Appellants contend before me that the conviction of the Appellants is wholly untenable and the Sessions Judge has recorded the conviction by misappreciating the evidence on record. To appreciate this contention, I have to examine the evidence on record. So far as Appellant Niranjan is concerned, admittedly there has been no recovery from his possession and his conviction is based solely on identification. But since he was arrested rater on 24.10.80 and Test Identification Parade In respect of him was conducted on 13.11.80 by the Magistrate (P.W. 4), Mr. Misra, the learned Counsel contends that the Test Identification roses all importance having been conducted after such delay, during which period accused Niranjan was remanded on several occasions being produced In Court and the witnesses had the opportunity of seeing him and thereby being able to identify him particularly when no explanation has been offered by the Investigating Officer for the delay in conducting the Test Identification Parade. It is undisputed that during the period of Niranjan's arrest and the Test Identification Parade conducted on 13.11.80, he was produced in Court for remand twice and it cannot be denied that the identifying witnesses might have had the opportunity of seeing him in Court, The prosecution evidence is totally silent as to whether any precaution had been taken to ensure that the accused was not seen by any outsider including the identifying witnesses. That apart, it is always safe to have a Test Identification Parade as immediately after the arrest of the accused as possible so that the accused cannot have any grievance and in case there is delay, the Investigating Officer must offer some explanation for the delay in question. But the evidence of the Investigating Officer In the present case indicates that no explanation has been offered for the delay in conducting the Test Identification Parade. In such circumstances, I find sufficient force in the Contention of Mr. Misra the learned Counsel for the Appellant, Niranjan that the Test Identification Parade roses its significance to a great extent. Then again from the evidence of the Magistrate (P.W. 4), who conducted the Test Identification Parade on 13.11.80, it transpires that along with Niranjan, three other suspected persons were put to Test Identification Parade and they were mixed up with 12 others. Within those 12, four of the accused persons who had been identified earlier by the self-same witnesses were also mixed up and, therefore, the real number of unknown persons who had been mixed up with the three suspects including Niranjan were eight. In the case of Asharfi and Another Vs. The State it was held that the test identification of suspects should be held with only one suspect mixed up with nine or ten innocent persons, the innocent persons being changed every time a fresh suspect is put up for identification. When several suspects are required to be identified, and they are put up for identification separately Care should be taken to See that the innocent persons mixed up are changed with very change of suspect, for Otherwise the benefit of holding separate identification proceedings would vanish. In that case it was also indicated that the proper way to hold identification proceeding is to put up each suspect separately for identification. In another case reported in Anwar and Another Vs. In that case it was also indicated that the proper way to hold identification proceeding is to put up each suspect separately for identification. In another case reported in Anwar and Another Vs. State it was observed: While no categorical observation that the ratio of 7 to 1 in the case of one or two suspects ipso facto destroys the results of identification can be made there can be no hesitation in holding that considerably diminishes the value of identification and unless the investigation is absolutely above board it would not be prudent to place any reliance on such identification. (Quoted from Head Note) It the aforesaid test is applied to the present case, anti the evidence of P.W. 4 is scrutinised. It transpires that neither the identification bench of the three persons had been made separately nor the ratio mentioned in the Allahabad judgment between the number of suspects with number of other persons to be mixed up had been followed and therefore, the said identification loses all importance practically. In the premises as aforesaid I am in complete agreement with the submission made by Mr. Misra, the learned Counsel for the Appellant Niranjan that the test identification parade so for as said Niranjan is concerned, is totally unworthy of Credit and cannot be utilised fat the purpose of corroborating the substantive evidence of identification in Court. It is no doubt an identification of an accused in the Court from substantive evidence, but it has been held in several cases that the said identification after lapse of couple of years of the occurrence cannot form the sole basis of conviction unless there has been an earlier test identification parade wherein the accused was identified by the witnesses. In view of my earlier finding that the test identification parade conducted by P.W. 4 in respect of the identification of accused Niranjan is vitiated, the said Niranjan's conviction on the evidence of identification made in Court by P.Ws. 1, 6, 7, 8 and 16 cannot be sustained, Accordingly the conviction and sentence passed against Appellant-Niranjan are set aside and he is set at liberty forth-with. 7. Corning to the other three accused Appellant's, however, I find sufficient materials against them. Each one of them was identified in a test identification parade conducted by P.W. 10 immediately after their arrest on 15.9.80. 7. Corning to the other three accused Appellant's, however, I find sufficient materials against them. Each one of them was identified in a test identification parade conducted by P.W. 10 immediately after their arrest on 15.9.80. The evidence of P.W. 10 indicates that he had taken sufficient precaution in holding the test identification parade and the parade was conducted in the manner prescribed by law. The suspects had been mixed up with as many as 42 persons and the position of suspects were also changed after identification by each witness. I have carefully examined the evidence of P.W. 10, and his report, Ext. 12, No infirmity has been pointed out to me so as to discard the said report or the test identification conducted on 15.10.80. Consequently the finding of the learned. Assistant Sessions Judge that the three Appellants were duly identified by the inmates of the house P.Ws. 1, 5, 7, 8 and 16 remains unassailable. From the evidence of the witnesses who had identified the accused persons in the test identification parade, it further transpires that they ascribed positive role to different persons in course of dacoity which facilitated them to remember the special features of them and as a result of which they could identify the accused persons. In this view of the matter, identification of three Appellants, namely, Sk, Altab Khan, Nalu Rana and Pratap alias Kanduri Sahu by P.Ws. 1, 5, 7, 8 and 16 in court during trial gets sufficient corroboration from their identification in the test identification parade held on 15.9.80 and the said identification can constitute the sole basis of conviction, But here in this case in addition to the identification, the articles recovered from these Appellants were also put to test identification parade and the witnesses identified those articles to be theirs in the test identification parade and ultimately in the court. The articles are M.Os. I to XLIX, LI, LII, LV. All these properties, M.Os. II to XXX, and LV had been seized from the possession of accused Pratap under seizure List, Ext. 4 by P.W. 19, and the said seizure is deposed to by the seizure witness, P.W. 3; M.O. I, XXXV, XLV, XLVI, and XLVII were seized from the possession of accused Sk. Altab by P.W. 15 under seizure list. Ext. 5, and the seizure witness to the same is P.W. 3, and M.Os. 4 by P.W. 19, and the said seizure is deposed to by the seizure witness, P.W. 3; M.O. I, XXXV, XLV, XLVI, and XLVII were seized from the possession of accused Sk. Altab by P.W. 15 under seizure list. Ext. 5, and the seizure witness to the same is P.W. 3, and M.Os. XLVIII and XLIX, XXXI, XXXIII, XXXIV, XXXIX, XL, XLII were seized from the possession of Nalu Rana under seizure list, Ext. 11 by P.W. 9. Thus the identification evidence is further strenghened from recovery of the stolen articles from the possession of the accused persons which were also duly identified by the inmates of the house to be theirs. In this view of the matter, the conviction of the Appellants Sk. Altab, Nalu Rana and Pratap alias Kanduri Sahu remains unassailable. The charge against the accused persons was that he along with five or more others, on or about the date of occurrence committed dacoity in question. In this view of the matter, even if accused Niranjan is acquitted of the charge, yet the conviction u/s 395 I.P.C. can be sustained. So far as the question of sentence is concerned, in the facts and circumstances of the case, I do not find any severity in the same as to be interfered with. 8. In the net result, therefore, the conviction and sentence passed against accused Niranjan are set aside and the said Appellant is set at liberty forthwith. Criminal Appeal No. 184/82 and Jail Criminal Appeal No. 44/82 are allowed. The conviction and sentence passed against the three Appellants, namely, Sk. Altab, Nalu Rana and Pratap alias Kanduri Sahu are affirmed and Jail Criminal Appeal No. 45 of 1982 is dismissed. Final Result : Dismissed