Judgment There are two appeals Criminal appeal No. 221 of 1984 has been presented by accused Kedar and Kapildeo Mahton. Criminal Appeal No. 257 of 1984 has been presented by accused Gayannath Mandal. Both the appeals arise out of the same judgment of additional Sessions Judge Katihar by which all the three appellants have been convicted under section 396 of the, Indian Penal Code (hereinafter referred to 'as the code') and sentenced to suffer imprisonment for life. For the sake of convenience both the appeals have been heard together and are being disposed of by this judgment. 2. A dacoity was committed in the house of the informant P.W.17 Rajendra Poddar on 12.10.1980 at about 18.15 P.M. in village Gandhitila (kuli para) under police station Manihari in district of Katihar about 25-30 persons raided the house. Rajendra Poddar was sleeping in a room. He got up on being assaulted by one of the dacoit He noticed that the dacoity were carrying guns, Lathies and other incriminating weapons. A few of them had entered inside room started damaging valuables from him and also ransacked the whole house. They broke open the boxes and removed articles worth several thousands. Harbansh Poddar, the elder brother of the informant was reading some news-paper in some other room. There was a lantern in that room. Some one among the dacoits fired a shot at him which proved fetal. The female inmates of the house were also assaulted. One Makhan Paswan P.W. 11, who was a Sarpanch and was casually roaming outside, was caught by some of the dacoits. He was brought inside Informant's, house and was asked to keep quiet. In the meantime, some one among the dacoits exploded a bomb. The loud report attracted the attention of the villagers. They ran towards Informants house hut before any one could arrive, all the dacoits ran away with the booty. They took away ornaments, radio, watch, utensils, tape-recorder and other valuable articles. 3. It has been shown in evidence that one Abdul Wahid of village Maheshpur had informed the police on the same day at about 6 P.M. in the evening that he had seen nearly 28 persons crossing the river by a boat moving towards village Manihari. He informed the police that they all looked like dacoits. The police after making an station-diary entry of the fact had rushed to village Manihari. He informed the police that they all looked like dacoits. The police after making an station-diary entry of the fact had rushed to village Manihari. But by the time police could arrive, the dacoity was committed in the house of the informant Rajendra Poddar. Police recorded the fardbeyan of Rajendra Poddar, on the basis of which, a formal, F.I.R. was drawn up and a case under section 396 of the code was registered against un-known. The police took up investigation and in course of investigation succeeded in arresting all the aforesaid three accused, who were subsequently put on a Test Identification Parade. Accused appellant Kedar was identified by two of the witnesses namely, P.W.10 Panchanand Poddarand P.W.11 Makhan Paswan. The other accused appellant Kapildeo Mahton was identified by P.W.10 Panchanand poddar only. The test identification parade was conducted by P.W.13, a Judicial Magistrate. After completing the investigation, the police submitted charge-sheet against the aforesaid accused and also against one Jagdeo Yadav. They were thus, put on trial before the court of Additional Sessions Judge. The learned Judge however, acquitted Jagdeo Yadav for want of identification and convicted the a foresaid three of the charge, against which this appeal has arisen. 4. Counsel for the appellants in both the appeals have very candidly conceded and did not challange the findings of the learned Sessions Judge with regard to the commission of dacoity. Evidence is conclusive that dacoity was committed in the house of Rajendra Poddar and come among the dacoits killed his brother Haribansh Poddar. Only the question of identification is disputed. Thus, a very short issue has been raised before us for a decision. 5 Accused Gayanath Mandal of Criminal Appeal no. 257 of 1984 was arrested on 16.10.1980. He was put on test identification parade on 1.12.1980. So, it was a gap of nearly a month and a half in conducting the test identification parade from the date of his arrest. So far the appellants are concerned, accused Kedar Yadav was arrested on 26.11.1980 and Kapildeo on 30.11.1980. All the three were put together on the test identification parade on the same date on 1.12.1980 conducted by the Magistrate P.W.13. The test identification chart has been proved in evidence as Ext.4. Sri Satyanarain Sharma, Counsel for the appellant Gayanath Mandal has argued that the prosecution has not given any explanation for the delay in conducting the test identification parade. The test identification chart has been proved in evidence as Ext.4. Sri Satyanarain Sharma, Counsel for the appellant Gayanath Mandal has argued that the prosecution has not given any explanation for the delay in conducting the test identification parade. The delay, as stated above, is of a month and half from the date of his arrest. It has been argued that during this period, the accused was produced in court twice, on the first occasion on 17.10.1980 just a day after his arrest and next on 10.11.1980 and then again remanded to custody. In this context it has been argued that the possibility of the witnesses having seen the accused while produced in court cannot be ruled out. Similar stand has been taken in other appeal as well, but the position is somewhat different. Both the accused Kedar and Kapi1deo were arrested on 26.11.1980 and 30.11.1980 respectively. But there is no evidence of their production in court in between the first date of their production for being remanded to custody and the date of holding the test identification parade. There is exactly no delay so far as the other two accused Kedar and Kapildeo are concerned. There is some delay, no doubt in the case of other accused Gayanath Mandal. 6. Delay in holding test identification of an accused arrested should generally be explained, as it is desirable that identification parade must be done at the earliest without loss of time. Delay evokes not only various criticsm but also cause 1035 of sanctity of the test. Time plays an important factor. Loss of time may cause fading out of the memory of the witnesses regarding clarity of the image of an accused seen in the occurrence. It is essential that delay should therefore, be avoided and test identification parade must be done at the earliest possible time. It is equally true that in some cases a witness may retain the memory of the accused for long. Therefore, no rule of law can be laid down for it, as it all depends on the circumstances appearing in each case and the evidentiary value of it has to be examined and judged accordingly So far as the case of Gayanath Mandal is concerned, admittedly there is a delay in holding the test identification parade and the delay has not been explained by the prosecution. No reason has been assigned why the test identification parade could not be conducted earlier after his arrest and the evidence is there on the record that he was produced in court twice giving occasions to the accused to submit before the court, the possibility of witnesses having seen him again or shown by the police. In the instant case there is evidence that the Investigating Officer was playing an important role with partisan attitude in conducting the test identification parade. Of course, it is the duty of the Police Officer to get the test identification done. He makes necessary arrangement for it. Identification parade provides corroboration to the testimony of witnesses, who give evidence in court. It is needless to state that facts establishing identity is relevant under section 9 of the Evidence Act. The purpose of the test identification parade is to test the worthiness or reliability of the statements of a witness, which he gives in court. Steps for getting the test identification parade is taken by the police in course of the investigation and therefore, police certainly plays an important role. 7. Test Identification parade, in our view does not constitute a substantive evidence as in a since it is an evidence to corroborate or to contradict the testimony of a witness, which he subscribes is court on oath. So, it is a sort of check-up of the correctness of the evidence given in court or, in other words, it can be said that the test identification parade is a corroborative circumstances and not an independent evidence. It could not be shown to us by the either party that the test identification parade must be done by a Magistrate. Generally a Magistrate is summoned to hold the test identification and that it should be done by a Magistrate as far as possible. It certainly loses its value if it is done in presence of a police officer as he is supposed to be interested in the success of the case. We may repeat again that in theory there is no legal impediment to hold test identification parade by a police, but in that event, it may be hit by section 162 of the Code of Criminal Procedure, because any statement or facts recorded in course of an investigation, is admissible subject to the limitation laid down under section 162 of the Code of Criminal Procedure. 8. 8. Guide lines have been given in the Bihar Police Manual, 1978, how a police Officer should get a T.I. parade conducted. Rule 36 speaks that those instructions shall be complied with word by word. The instructions may be quoted here profitably. I. The suspects shall be kept at a place where identifying witness can not have access to him. II. At the time of taking the suspects to court or Jail, precaution shall be taken that none is able to see them and hence they shall be taken in closed vehicles or if such vehicles are not available, their facts shall be covered in such a manner that they can not be recognized. Ill. As far as possible, the photographs of suspect’s persons shall not be published before identification. IV. The investigator shall not keep suspected persons in Police custody before holding Test identification. V. For identification, one suspected persons is to be mixed with 8-10 other persons and not that ten suspected persons shall be mixed in a small group. VI. Identification should be done without delay because identification done with delay is not fully acceptable to Courts. VII. The investigating officer though his presence may be essential outside shall not be present while the identification is in progress. Rule 236 B(C) lays down that the identification parade shall be conducted as far as possible before a Magistrate, but if for any reason a Magistrate cannot be avaiable, then before any other responsible officer, such as the services of a Deputy Registrar shall also be admissible. Therefore it is desirable that it should invatiably be conducted by a Magistrate. 9. So far as the instant case is concerned, the counsel for the appellants, while drawing our attention to Exhibit 4, identification chart, has argued that the evidence shows that the police officer was present almost throughout at the time of conducting the parade. In this connection, the learned Advocate has referred to the evidence of the Magistrate P.W.13, who has admitted that columns. Nos. 1 to 5 were written by the Police officer Sheodhari Rajak; and received copy of the same on the same date on 1.12.1980 and made endorsement thereof. This Sheodhari Rajak is none else, but the same police Officer, who drew up the F.I.R. on the statement of Rajendra Poddar. Nos. 1 to 5 were written by the Police officer Sheodhari Rajak; and received copy of the same on the same date on 1.12.1980 and made endorsement thereof. This Sheodhari Rajak is none else, but the same police Officer, who drew up the F.I.R. on the statement of Rajendra Poddar. Column No.5 of the chart speaks regarding description and the manner, in which the identification was done. These columns should have been filed in by the Magistrate conducting the parade The very writing out these columns conclusively lead us to hold that he was present all through as in this column the endorsement is made by Rajak as follows:- "The suspects were mixed up with the persons of similar description in ratio of 1:8." Only the last column was written by the Magistrate himself. But it is quite evident that mixing up the suspect s with the under trial person to effect identification done by the Police Officer inside Katihar jail, where the test identification was conducted. Thus, We find force in the submission of the counsel for the appellants that the police was taking active part in conducting the test identification parade and was present all through, and in such a situation the possibility of the police officer colluding with the witnesses brought by him, cannot absolutely, be ruled out. 10. In these circumstances, the whole process of conducting the test identification parade becomes very much suspicious. We may further add here that no reason has been assigned to keep Sheodhari Rijak out of court. He has not been examined. In the present case his evidence appears to be essential to tell the court what part was played by him. He appears to have played an important role. He brought the witnesses to jail. He was he why drew up the F.I.R. He knows the facts of the case and spoke about it to the Magistrate. He wrote out the facts of the case in column no. 1. The witnesses were told about the case and then asked to point out, whom they could identify. The Magistrate does not speak in his evidence that he asked the police Officer to keep out of the room or the court-yard where the test identification parade was conducted positive evidence should have been led to prove that he was not present before the Magistrate. The Magistrate does not speak in his evidence that he asked the police Officer to keep out of the room or the court-yard where the test identification parade was conducted positive evidence should have been led to prove that he was not present before the Magistrate. In this connection Clause (1) of rule 236 of the Bihar Police Manual, 1978 may again be referred to, which read as to Follows: "The Investigating Officer, though his presence may be essential shall not be present while the identification is in progress." In the present case there is complete violation of this rule. This distracts the value of the identification. We are not on the point of procedural error. The point is otherwise. The police was taking active part and therefore, possibility of collusion and putting hints into the ears of the witnesses in the present case cannot be ruled out. In that circumstance, we do not feel safe to accept the statements of the prosecution witnesses regarding identification of these three appellants, i.e. of P. Ws. 10 and 11. These statements regarding identification in court after a long gap and in the circumstances do not carry any weight. 11. P.W.17, who is the Informant of the case did not identify anyone. There is contradiction even in his evidence. P.W. 11, Makhan Paswan has said that he was brought near deceased Harbansh, who was reading paper in the Varandah. P.W.17 stated in the F.I.R. the deceased Harbansh was reading news-paper in a room, whereas P.W.10 Panchanan Poddar has said in evidence that he was reading a magazine described as 'Rabivar' in a room and not in the Varandah. No one has identified the accused who found the gun shot or the accused that exploded the bomb. According to this witness P.W.10, appellant Kapildeo hit him with a lathi and accused Gayanath was standing in the Varanrlah with a dagger in his hand and Kedar was standing in front of him with a revolver. But before the Magistrate his evidence is otherwise. He gave out that it was accused Kapildeo who assaulted him and further stated that he had seen Gayanath while running away from the place. But it is not clear at what time he could identify and in what light. The lantern was in the Varandah or in the room and he could not have identified the accused while running. He gave out that it was accused Kapildeo who assaulted him and further stated that he had seen Gayanath while running away from the place. But it is not clear at what time he could identify and in what light. The lantern was in the Varandah or in the room and he could not have identified the accused while running. There was no light in the street. It is also not clear what weapon was used in assaulting him and by whom. It will also be important to note that P.W.17 claims to be there in the Varandah, where his brother Harbansh was done to death, but he himself does not identify any accused. No assault on him. The female inmates of the house were also assaulted and they saw the boxes being broken and removal of ornaments. But did not come forward to identify anyone of the accused. None of them has been examined and at the same time why should P.W.11 Mhkhan Paswan who was running outside in the street be caught hold of and taken inside near deceased Harbans by anyone of the accused and then he would be let off. An accused would not bring a stranger to creat some evidence or to facilitate identification. This story is doubtful. 12. Thus, apart from the serious lacuna that was found in conducting the Test Identification Parade, there is paucity of evidence with regard to the manner of identification by the two witnesses P.W.10 and P.W.11. In the circumstances, it would not be safe to uphold the conviction of the appellants. 13. In the result, the aprea1 succeeds the orders of conviction and sentence passed against each one of the appellants are set aside. We are told that appellant No. 1 Kedar Yadav and Gayanath Mandal (appellant no. 3) are on bail. They may be discharged from the bail bond if any. Kapildeo Mahto (appellant no. 2), who is in jail, may be released forth with, if not wanted in any other case. Appeals allowed.