JUDGMENT 1. - This appeal is directed against the judgment dated 14-12-1978 and the order dated 19-12-1979, passed by the learned Addl. Sessions Judge, No. 1, Alwar, in Sessions Case No. 10/1979, convicted and sentenced the accused appellant as under : U/S. 458 IPC to 4 years R. I. and a fine of Rs. 200/- in default of payment of fine to undergo further R. I. for one month. Under S. 394 read with S. 397 IPC to undergo 7 years R. I. and a fine of Rs. 200/-, in default of payment of fine to further undergo one month's R. I. Both the sentences were directed to run concurrently. 2. The prosecution story unfolded during the trial is that on the intervening night of 3rd and 4th August, 1978, some persons entered into the house of Ramswaroop P. W. 5 and he was sleeping with his wife Mst. Atri. The accused person tried to remove Kada which she was putting on. When accused tried to remove the Kada, she cried, there-after accused ran away. P. W. 3, Sampat scaled on the wall and he saw the accused in the light of the torch while running. In the instant case, 5 persons were prosecuted. Out of them 4 persons have been acquitted by the court-below and the accused appellants have been convicted as referred above. 3. Learned counsel for the appellants has assailed the judgment of the court-below and submitted that it is not practicable to identify the accused within short space of time particularly, in the darkness of dark night. He has invited my attention to Ex. P 3, and submitted that Mst. Atri, had a better opportunity to see the accused but she never identified any one. He further submits that Ramswaroop, has identified the appellant as well as the wrong person Bhagwana. He submits that by chance he has placed the hands on appellant and the identification of a wrong person namely Bhagwana, gives support to his case that Ramswaroop, might have wrongly identified the person. He further states that even during the course of identification parade the accused told to learned Magistrate, that they were shown at the police station. He further submits that Sampat, P. W. 3, has also identify Brij Mohan, Ram Singh and Manna Ram. Manna Ram, is not on accused in this case and he was under trial. He further states that even during the course of identification parade the accused told to learned Magistrate, that they were shown at the police station. He further submits that Sampat, P. W. 3, has also identify Brij Mohan, Ram Singh and Manna Ram. Manna Ram, is not on accused in this case and he was under trial. Brij Mohan, has been acquitted and his identification has not been accepted by the court-below. Thus, out of the 3 persons 2 persons were identified by Sampat P. W. 3, the identification of two persons have been rejected by the court-below and naturally the identification of Sampat P.W 3, cannot be said to be a good identification. 4. In the facts and circumstances of the case, he submits that it will not safe to maintain the conviction of the appellant only on the ground of identification as there is no other evidence. He has also invited my attention to the statement of P.W. 11, Lachhmi. She has stated that accused were kept in the police station for 2 to 4 days. She has also stated that they were taken to one police station and then other police station. The appellant has made a complaint also at the time of identification parade. 5. Learned Public Prosecutor, has supported the judgment and has stated that identification of the other persons have been rejected hence, the benefit of doubt should not be given to the present appellant. Learned P. P. has further invited my attention to the statement of P.W. 9, Shri Phool Chand Tiwari, to show that the accused was kept in jail as baparda. There is no dispute as far as accused is concerned, about jail. The dispute is about showing the accused prior to admission in jail. It is an admitted position that the accused was arrested earlier in other case and he was in police station. Taking conspicuous picture of the case, namely the wrong identification by Sampat and Ramswaroop of other persons and the rejection of identification of Brij Mohan by the trial court, it will not be safe to maintain the conviction of the accused appellant only on the evidence of identification, particularly when Mst. Atri, could not identify the appellant who was the best witness of the prosecution case. Atri, could not identify the appellant who was the best witness of the prosecution case. Apart from that it is very difficult to believe that Sampat could not identify in the torch light which he was throwing towards the accused standing at a very distance on the wall. 6. In the facts and circumstances of the case, I am inclined to accept the appeal. The judgment of the trial-court is set-aside. The accused is acquitted on all count. The accused is on bail and need not surrender. The bail-bands of the accused shall stand cancelled.Appeal allowed. *******