Judgment Ram Nandan Prasad, J. 1. Both the appellants have been convicted under section 412 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for eight years each. It appears that they along with eleven others were also tried on the charge under Sec.395 of the Indian penal Code, but they have been acquitted of this charge by the learned trial court. 2. The prosecution case is that in between 6th and 7th March, 1973 the informant, namely, Ayodhya Pandey (P. W.9), was sleeping on the roof of his dalan. At about midnight he woke up on the cries raised by the female inmates of his house and then he came out of the room and saw some persons standing in front of his house. They were also flashing torches. The informant also flashed torch in the light of which he identified a number of them by name. All those persons who were apparently dacoits were taking out articles from his house. After the retreat of the dacoits the informant came down. At about the same time the villagers, to wit, P. Ws.1, 2, 4 and 5 and same others came there. These witnesses also claimed to have identified some dacoits by face. The informant also learnt that his mother and wife had sustained injury at the hands of the dacoits. 3. On the following morning the informant went to the police station and lodged a first information report, on the basis of which a case was registered on the following day i. e. on 8-3-1973. The investigating officer searched the houses of these two appellants and recovered a number of articles which were subsequently identified at a test identification parade by some of the prosecution witnesses. After completing investigation, the police submitted charge-sheet against the thirteen persons, all of whom were tried by the learned Additional sessions Judge with the result as stated above. 4. The learned counsel for the appellants frankly stated that she would not challenge the f actum of dacoity. In fact, the factum of dacoity was not challenged even before the court below, as the same has been fully proved by p. Ws.3, 7 and 9 who are inmates of the same house and also by the villagers, to wit, P. Ws.1, 2, 4 and 5. 5. In fact, the factum of dacoity was not challenged even before the court below, as the same has been fully proved by p. Ws.3, 7 and 9 who are inmates of the same house and also by the villagers, to wit, P. Ws.1, 2, 4 and 5. 5. The submission of the learned counsel for the appellants is that in the present case the test identification parade of the articles recovered from the houses of the appellants is not above suspicion, and as such no value should be attached to that test identification parade and consequently to the identification of the articles by the witnesses in court. 6. As said above, a number of articles were recovered from the houses of these two appellants which have been detailed in the seizure list, Exts.4 and 4/1. These two appellants have admitted in their statements under Sec.313of the code of Criminal Procedure about the recovery of these articles from their respective house. So, the recovery of the said articles covered by Exts.4 and 4/1 are not in dispute in this case. The defence of these appellant is that all these articles belong to then and are not stolen properties. These articles were put on test identification parade conducted by P. W.10 on 18-3-1973. At this parade P. Ws.7, 8 and 9 who are members of the same family identified same of the said recovered articles as their own. 7. The submission of the learned counsel for the appellants is that this test identification parade loses all its value in view of the ad mission of P. W.7 in paragraph No.6 of her deposition that the police Sub-Inspector and P. Ws.8 and 9 were present in the room where she had identified the said articles. Apparently this admission affects vitally the credibility of the test identification parade, as the presence of these witnesses, specially the police officer, vitiates the entire test identification parade. It needs no saying that the test identification parade must be fair and upright and above suspicion. If the police officer is present at the place where the test identification parade as being held. I wonder how the test identification parade can be called fair and upright. It needs no saying that the test identification parade must be fair and upright and above suspicion. If the police officer is present at the place where the test identification parade as being held. I wonder how the test identification parade can be called fair and upright. Similarly, the presence of P. Ws.8 and 9 at the place of test identification parade would also affect the value of the test identification parade, is they were also in a position to influence this witness as also each other in the matter of identification of the articles. P. W.9 was her Bhaisur and an eleder member of her faimly who was expected to exercise some influence over her. The test identification parade of stolen articles conducted in presence of these witnesses, specially the police officer, would give a death blow to the sanctity of the test identification parade and no reliance can be placed thereon. If the test identification parade goes out of consideration, no value can be attached to the evidence of P. Ws.7, 8 and 9 regarding identification of the alleged stolen articles in court, as they had given their evidence in court after more than nine years of the occurrence and, indeed, it will be too much to expect that they will be able to identify these articles, which are common place articles, in court correcting after such a long time. At any rate, their identification in court cannot be sufficient for their conviction when that evidence is not supported by their earlier identification at a test identification parade. 8. The learned Additional Session Judge has, however, not attached any importance to the said admission of P. W.7 on the ground that this admission was obtained under stress of cross-examination. I cannot understand what the learned Addl. Sessions Judge means by expression stress of cross-examination. According to me, no cross-examination is a pleasant affair and in all cross-examination the witness is under stress, more so, if he happens to be a material witness. I have carefully examined the deposition of P. W.7 and did not find anything to suggest that she did not intend to make such an admission. The learned Addl. Sessions Judge also has taken note of the fact that P. Ws.8 and 9 were not cross-examined on this point. I have carefully examined the deposition of P. W.7 and did not find anything to suggest that she did not intend to make such an admission. The learned Addl. Sessions Judge also has taken note of the fact that P. Ws.8 and 9 were not cross-examined on this point. In my opinion, this circumstance cannot undermine the value of the said admission, as it was wholly unnecessary for the cross-examiner to put the same question to P. W.8 and 9, who were examined, later, when once he has got a favourable answer from P. W.7. So, evidently the learned Addl. Sessions Judge was not justified in ignoring the said admission made by P. W.7. If face value is given to the said admission, the entire test identification parade loses its importance as discused above. 9. There is yet another aspect of the matter. It has been contended that it is for the prosecution to establish affirmatively that every necessary precaution was taken to ensure fair identification of the articles. It was further contended that the essential requirement was that the articles should have been sealed soon after the recover and the sealed bundles should have been opened in the presence if the Magistrate conducting the test identification parade. Reliance was placed in support of this submission on the decision in the case of the State of Vindhya pradesh V/s. Sarua Munni Dhimar and others, AIR 1954 Vindhya Pradesh 42. Undoubtedly, there is no evidence in this case to show that the recovered articles were put in a sealed bundle and that seals were broken only by the Magistrate conducting the test identification parade. It was also pointed out that the magistrate conducting the test identification parade has. not spoken anything regarding the breaking of the seal. It has been contended that the investigating officer has not been examined at all and as such the appellants could not bring these facts before the court. It was also submitted that the appellants have been prejudiced by the non-examination of the police officer concerned, as they could not get an opportunity to cross-examination him and bring the various infirmities in conduct of investigation as also of the test identification parade. It was also submitted that the appellants have been prejudiced by the non-examination of the police officer concerned, as they could not get an opportunity to cross-examination him and bring the various infirmities in conduct of investigation as also of the test identification parade. There appears some force in these submissions but there appears no necessity of giving a definitive decision on this point in the present case as the appeal is bound to succeed on the first ground discussed above. 10. Taking into consideration all aspects of the matter, I have no doubt in my mind that the test identification parade of the articles was not conduct fairly and it could not be called above suspicion. In that view of the matter, no value or sanctity can be attached to that test identification parade and in such a situation no value can be given to the evidence of the witnesses given in court regarding identification of the articles after more than nine years of the occurrence. I am, therefore, inclined to give benefit of doubt to the two appellants in respect of the charge under Sec.412 of the Indian Penal Code. 11. In the result both the appellants are given benefit of doubt and acquitted of the charge for which they have been convicted. The order of conviction and sentence/recorded against them is therefore set aside and the appeal is allowed and they are discharged from the liability of their bail bonds. 12. Before parting, I would like to make it clear that nothing in this judgment should give an impression that the articles in question belong to the appellants. If any party applies for return of the said articles which have been claimed by P. Ws.7.8 and 9 as their own, the court concerned shall make a through enquiry and decide the question as to who was entitled to get those ornaments. Appeal allowed.