G. B. SINGH, J. This is an appeal against the judgment and order dated 19-4-1982 passed by the IInd Additional Sessions Judge, Bahraich convicting the appellants under Section 395, I. P. C. and sentencing them to five years rigorous imprisonment. 2. The case of the prosecution against the appellants, was that they alongwith 16 or 18 others on the night between 6/7-2-1977 at about 11. 00 p. m. committed dacoity at the houses of Amrish Kumar, Shyam Lal, Ramsukh, Rameshwar Prasad, Champa Ram and Raj Narain at village Garethi Gurudutt Singh, Police Station Hardi district Bahraich. The dacoits were armed with lathi danda, gun and country-made pistols and were flashing electric torches. They first ransacked the house of Amrish Kumar informant. After committing dacoity at his house they looted property from the houses of Shyam Lal, brother of Amrish Kumar informant. The dacoits then looted valuables from the house of Ramsukh, Champa Ram and Rameshwar who are cousins and from the house of Raj Narain who is nephew of the informant. On the alarm raised several persons of the village assembled and tried to put in resistance whereupon the dacoits fired several rounds from their fire-arms on account of which several persons received injuries. A lantern was burning inside the house of Amrish Kumar and electric torches were flashed by the rescuers. One of the rescuers set fire to Kharai kept near the house of the informant due to which sufficient light was created at the time of dacoity. The dacoits were unknown and their faces were seen in the light of the aforesaid lantern, electric torches and the light of the flames of burning Kharai. The dacoits after looting the valuable went away. A written report was lodged by Amrish Kumar at the Police Station Hardi on 7-2-1977 at 8-10 a. m. where upon a case under Sections 393/397,i. P. C. was Registered, Maika Chongai, Jagdeo Prasad, Lautan son of Gopali, Lautan Son of Bhadra, Paikarrna, chandrika Prasad, Jag Mohan Prasad, Ram Khelawan, Sunder Lal, Kanauji Lal, Bantey, Ranjit Ram, Ramsurniran,, Piarey Lal and Rameshwar received injuries at the time of the dacoity were medically examined and injuries were found on their person. 3. The case was investigated by S. I. Paras Nath Singh (P. W. 7 ). He went to the place of the incident on 7-2-1977, interrogated the witnesses and prepared a site plan. 3. The case was investigated by S. I. Paras Nath Singh (P. W. 7 ). He went to the place of the incident on 7-2-1977, interrogated the witnesses and prepared a site plan. On 9-2-1977, S. O. , Gopendra Bhushan Tripathi (P. W. 8) took investigation of the case and submitted charge-sheet. 4. Kishori and Badlu appellants were not named in the First Informa tion Report. According to the prosecution case their complicity came to light during investigation. Kishori appellant was arrested on 10-3-1977 by S. O. , Gopendra Bhushan Tripathi (P. W. 8 ). He made him Bapardah and brought him to police Station Hard and put him in the police lock up there. He was sent to the District Jail Bahraich next day. Badlu appellant was also arrested from his house on 10-3-1977 by S. I. , Amar Nath Singh (P. W. V) and was sent to District Tail Bahraich on 11-3-1977. They were put up for test identification in the District Jail, Bahraich on 23-4-1977. Shri A. B. Singh, Additional Executive Magistrate (P. W. 4) conducted the test parade Kishori appellant was correctly identified by seven witnesses namely Amrish Kumar, Shyam Lal, Jag Mohan, Raj Narain, Champa Ram, Chandrika Prasad and Sunder Lal, Badlu appellant was correctly identified by eight witnesses namely Amrish Kumar, Shyam Lal, Jag Mohan, Raj Narain, Champa Ram, Chandrika Prasad, Radhey Shyam and Sunder Lal. The identification memo is Ext. ka-2. 5. On behalf of the prosecution Amrish Kumar (P. W. 1), Shyam Lal (P. W. 2), Chandrika Prasad (P W. 3) and Sunder Lal (P. W. 5) were examin ed as eye-witnesses of the occurrence. They stated about the commission of dacoity and correctly picked up the appellants at the time of their deposition. They have stated that the appellants were amongst the dacoits who committed dacoity on the relevant night. Shri A. B. Singh, Additional Executive Magistrate (P. W. 4) conducted the test identification parade H. C. Sheo Das Tiwari brought Badlu accused Baparadah from Police Station Nanpara to district Jail, Bahraich on 11- 3-1977. S. I. Paras Nath Singh (P W. 7) and Gopendra Bhushan Tripathi (P. W. 8) investigated the case. S. I. , Amar Nath Singh (P. W. 9) arrested Badlu on 10-3-1977 from his house in connec tion with some other case. S. I. Paras Nath Singh (P W. 7) and Gopendra Bhushan Tripathi (P. W. 8) investigated the case. S. I. , Amar Nath Singh (P. W. 9) arrested Badlu on 10-3-1977 from his house in connec tion with some other case. He brought Badlu accused Bapardah to the Police Station Nanpara and put him in the police lock-up there. Constable Din Dayal Tewari (P. W. 10) brought Kishori appellant from Police Station Hardi to District Jail Babraich on 11-3-1977. 6. The appellant denied that they committed dacoity on the relevant night at the houses of the aforesaid persons. Their defence is that they have been falsely implicated in the case on account of enmity. With regard to their identification they have stated that they were shown to the witnesses at the police station. Badlu appellant has further stated that he was known to the witnesses on account of his relationship in village Kauliya, ta which the mother of Shyam Lal witnesse belongs. 7. Learned Additional Sessions Judge believed the prosecution case and convicted and sentenced the appellants as mentioned above. Feeling aggrieved with it they have filed the present appeal. ,. 8. It has been argued by the learned Counsel for the appellants that there is only evidence of identification against them but that evidence is not worthy of reliance because there is delay in holding, the test parade and there is possibility of the appellants being shown to the witnesses before the identification. There is much force in this argument. 9. The factum of dacoity was not challenged by the learned Counsel for the appellants. He simply denied complicity of the appellants in the alleged crime. The prosecution examined four witnesses, Amrish Kumar (P. W. I), Shyam Lal (P. W. 2), Chandrika Prasad (P. W. 3) and Sunder Lal (P. W. 5) to prove that 18 or 20 dacoits committed dacoity at the houses of Amrish Kumar, (P. W. 1), Shyam Lal (P. W. 2), Champa Ram father of Chandrika Prasad (P. W. 3), Rameshwar, Ram feukh and Raj Narain. It has come in evidence that Amrish Kumar (P. W. 1) and Shyam Lal (P. W. 2) are real brothers Rameshwar, Ram Sukh and Champa Ram are their cousins and Raj Narain is their nephew and their houses are adjoining to each other. Sunder Lal (P. W. 5) is their neighbour. It has come in evidence that Amrish Kumar (P. W. 1) and Shyam Lal (P. W. 2) are real brothers Rameshwar, Ram Sukh and Champa Ram are their cousins and Raj Narain is their nephew and their houses are adjoining to each other. Sunder Lal (P. W. 5) is their neighbour. Their statement about dacoity was not challenged in their cross-examination. The first information report was lodged soon after the occurrence and it corroborates the statement of Amrish Kumar informant (P. W. 1 ). Several persons received injuries at the time of the incident and their injury reports have been filed and proved in the case. The Investigating Officer visited the place after the occurrence and found that the houses were ransacked and signs of commission of dacoity were present at their houses. In view of all this the factum of dacoity at the aforesaid houses has not been challenged rightly by the learned Counsel for the appellants. 10. The point to be seen is if the evidence of identification led in the case is worthy of credence and conviction of the appellants for the offence of dacoity can be upheld on its basis. It has been mentioned above that Kishori and Badlu appellants were arrested on 10-3-1977 and were put in the District Jail, Bahraich on 11-3-1977. They were put up for test identification on 23-4-197/. From that it is evident that the appellants were put up for test identification after a lapse of 43 days. Learned Counsel for the appellants argued that this delay of 43 days from the date of arrest, makes this evidence of indentification doubtful. In support of this argument, he relied upon Soni v. State of U. P. , 1983 SCC (Criminal) 49. The relevant observations are as given below : "the conviction rests purely upon his identification by five witnesses Sent. Koori Pritam Singh, Kewal, Chaitu and Sinru, but it can not be forgotten that the identification parade itself was held after a lapse of 42 days from the date of arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof part from the fact that it is difficult that after a lapse of such a long time. the witnesses would be remembering the facial expressions of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof part from the fact that it is difficult that after a lapse of such a long time. the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon, there is no other evidence which can sustain the conviction of the appellant. " 11. These observations, undoubtedly, lend support to the learned counsel for the appellants but it does not lay down any hard and fast rule as to when the test parade should be held after arrest or the commission of crime. It may also be added if there were such a rule, it would be easiest thing for a culprit to avoid his arrest or cause delay in holding test parade and then can go with impunity because of the lapse of the requisite period of time. It is true that the identification should be held at the earliest possible opportunity and there should not be any inordinate delay in holding it because human memory is fallible and impressions as to identity of offenders have tendency to fade out with the lapse of time but the evidence of identification should be judged on the basis of various facts and circumstances of the particular case. The intervention of time between observation and recall is certainly a relevant factor in determining the reliability of recall but it would be hazardous to fix a universal measure of time after which recall should be necessarily disbelieved. All that a Judge in appreciating evidence has to do is that when there is a long period intervening the observation and recall, it decreases the ability to recall and as such when there is delay in identifi cation parade. Investigating Officer should explain it and unless satisfactorily explained it may lend support to the defence plea that the accused had been shown to the witnesses. It may, however, be mentioned that it cannot be laid down as a proposition of law that after the lapse of a long period the witnesses would, in no case, be able to identify they had seen in the course of a dacoity committed at (heir houses. The courts in such such circumstances should be extremely cautious when such evidence is placed before them. 12. The courts in such such circumstances should be extremely cautious when such evidence is placed before them. 12. In the present case there are some circumstances which further indicate that benefit of the observations made in the case relied upon by the learned Counsel for the appellants must be given to him. The identification memo shows that nine witnesses went to identify the dacoits in the task parade and out of them Badlu was correctly identified by eight witnesses whereas Kishori was correctly picked out by seven witnesses. The other suspects who were put up alongwith the appellants were not identified by such a large number of witnesses. When this circumstances is considered alongwith delay in holding the test parade, it indicates that such a performance could be possible when these appellants had been shown to the witnesses. 13. Out of the aforesaid witnesses who correctly picked out Kishori and Badlu appellant, Amnsh Kumar (P. W. 1), Shyam Lal (P. W. 1), Chandrika Prasad (P. W. 3) and Sunder Lal (P. W. 5) were examined in the court. They stated in their deposition that these appellants were amongst the dacoits and committed dacoity at their houses and were identified by them in the test parade. Since Amrish Kumar (P. W. 1) correctly identified three suspects and committed four mistakes in the same parade his evidence was rightly rejected by the learned Sessions Judge. Sunder Lal (P. W. 3) was not interrogated by the Investigating Officer during the investigation. He correctly identified three suspects and committed two mistakes. His performance in the test parade cannot be said to be good and since he was not interrogated by the Investigat ing Officer his testimony was rightly excluded by the learned Additional Sessions Judge. Thus, the testimony of two witnesses Shyam Lal (P. W. 2) and Chandrika Prasad (P. W. 3) only remains for consideration. Shyam Lal (P. W. 2) identified six suspects correctly and committed no mistake, similarly Chandrika Prasad (P. W. 3) identified three suspects correctly and committed no mistake. At the time of their statement before the court they correctly picked out the appellants and stated that they were amongst the dacoits. 14. Shyam Lal (P. W. 2) identified six suspects correctly and committed no mistake, similarly Chandrika Prasad (P. W. 3) identified three suspects correctly and committed no mistake. At the time of their statement before the court they correctly picked out the appellants and stated that they were amongst the dacoits. 14. S. I. Amar Nath Singh (P. W. 9) has stated that he attrested Badlu appellant on 10-3-1977 and after the arrest made him Bapardah, brought him to the police station and put him in the police lock up. H. C. Sheo Tewari (P. W. 6) stated that he took the accused on 11-3-1977 from police station Nanpara to the District Jail, Bahraich and lodged him there. It has also come in his statement that he started from the Police Station Nanpara on ll-3-1977at8. 30a. nl. The identification memo shows that the accused was put up in the District Jail on 12-3-1977. There is no explanation as to why he was not put up in the District Jail on 11-3-1977. He was, therefore, unncessarily detained in the police custody and it lends assurance to the sug gestion made on behalf of Badlu appellant that he was shown to the witnesses. 15. S. O. , Gopendra Bhushan Tripathi (P. W. 8) stated that he arrested Kishore appellant on 10-3-1977 in village Singhia Nasir. After arrest made him Bapardah, brought him to the Police Station Hardi and put him in the police lock-up there. Constable Din Dayal Tewari (P. W. 10) stated that he brought Kishori from the Police Station Hardi to the District Jail, Baharaich on 11-3-1977 and he put him in the District Jail on the same day. It has also been added by him that he kept the accused Bapardah while he was in his custody. In cross-examination he could not deny that the witnesses of the case also travelled by the same bus by which lie brought the appellant to Bahraich. Not only this he could not tell how Kishori was made Bapardah. It is significant to note that S. O. , Gopendra Bhushan Tripathi (P. W. 8) and Constable Din Dayal Tiwari (P. W. 10) did not state that Kishori remained Bapardah in the police lock up at Police Station Hardi. They simply stated about keeping his face covered while he was in their custody. It is significant to note that S. O. , Gopendra Bhushan Tripathi (P. W. 8) and Constable Din Dayal Tiwari (P. W. 10) did not state that Kishori remained Bapardah in the police lock up at Police Station Hardi. They simply stated about keeping his face covered while he was in their custody. Thus, this lacuna in prosecution evidence when considered the suggestion of the appellant that he was shown to the witnesses cannot be ignored. It indirectly supports the suggestion made by the accused-appellant that he was shown to the witnesses after the arrest. 16. The value of the identification at test parade depends to a very large extent on whether the identifying witnesses had any opportunity between the occurrence and the test identification parade to sec the suspects. The identification evidence is of weak kind and if reasonable suspicion arises that the suspects were shown to the witnesses before the test parade the identifica tion evidence loses its importance. When the probability of accused having been shown to the witnesses by the police is not ruled out the evidence of identification becomes valueless and the accused becomes entitled to benefit of doubt. 17. Keeping in view that has been discussed above and the evidence led in the case I am of the opinion that the case against the appellants has not been proved beyond doubt by convincing evidence of identification. 18. The appeal is allowed. The conviction and the sentence of the appellants Kishori and Badlu under Section 395, I. P. C. are set aside. They are acquitted of the charge. They are on bail. Their bail-bonds are dis charged. They need not surrender. Appeal allowed. .