JUDGMENT 1. 1. This appeal has been preferred against the judgment dated 16th February, 80, passed by the Addl. Sessions Judge No. 5 Jaipur City, Jaipur, convicting the accused-appellant of under sections 457 & 395, IPC. For both the offences, he has been sentenced to 2 years' RI and a fine of Rs. 250/-, and in default of payment of fine, to further undergo 3 months' R1 each. Both the substantive sentences were however, ordered to run concurrently. 2. On 24th April, 77 at 8.20 AM, one Kalyan lodged a verbal report at PS-Jhotwara, stating therein that on the night intervening 23rd & 24th April, 77, six persons had entered into his house and four out of them surrounded his family- members, who were sleeping on cots, and that the rest two entered into the room and brought out a box, and after opening that box, they took away 3 Kanaktis made of silver, weighing about 11/2 kgs., a pair of silver-Kadas, weighing about 50 tolahs and one silver-ponchi weighing about 13 tolahs, with them, and that he had followed them, but the miscreants had fires a shot from their gun, at him. The report further says that later on, with the help of the villagers, they had traced through the Khoj' and had gone upto Hasanpura. He further stated in the report that he could identify those persons, if they came before him, who, according to the informant, were speaking the language of Bihar State and one of them was speaking in Haryanvis. 3. In the 'Karyavahee-police', it has been mentioned that the miscreants had thrown torchlight, and so, in that light, he had identified those persons. The police arrested Sukhev and Rameshwar. During trial Rameshwar remained absconded, and so the trial proceeded against Sukhdev only. On the request of Sukhdev, one Ponchi was recovered by the police. The police then got identification of the accused and Ponchi done. Kalyan and his wife identified the Ponchi to be of theirs. Accused Sukhdev was also identified by Kalyan, Sarvan and Bhanwarlal. 4. After completing usual investigation, the police submitted a challan against accused persons Sukdev and Rameshwar. 5. The trial court framed charge under section 457 & 395/397. IPC. After the trial, the trial court found appellant Sukhdev guilty under section 457 & 395, IPC and sentenced him as mentioned above. 6. 4. After completing usual investigation, the police submitted a challan against accused persons Sukdev and Rameshwar. 5. The trial court framed charge under section 457 & 395/397. IPC. After the trial, the trial court found appellant Sukhdev guilty under section 457 & 395, IPC and sentenced him as mentioned above. 6. The learned counsel for the appellant argued that the identification of accused Sukhdev, has no value. Sukhdev was arrested on 6th June, 77 and his identification parade was held on 11th June,'77. During that Parade, the accused was shown to the witnesses. It was argued by the learned counsel that according to the prosecution, the prosecution witnesses had identified the accused persons at the time of the alleged occurrence, in the torchlight. Though, in the original report, Kalyan did not mention that he had identified the accused persons, because he had seen them in the torch-light, but in the Karyavehee-Police' this fact has been inserted that he had identified them in the torch-light. It was thus argued by the learned counsel that identification of the accused in the torch-light is a subsequent insertion by the police itself. According to him. had it been a fact that the witnesses had identified in the torch-light, then, it would have been stated so, while lodging the report. Apart from this, it was argued that it cannot be believed that while committing a dacoity the miscreants would throw/focus torchlight on one another's face, so as to enable the witnesss to identify them; and that in the case of the miscreants' having torches with them, they would only use them for searching for money, ornaments and other valuable articles, and they would never throw its light on one another's face so as to disclose their identities. In support of his argument, the learned counsel for the appellant relied on the cases of Noor Mohammed v. State ( 1984 RLR 329 ) ; and Naharsingh v. State ( 1984 RLR 479 ) . In the case of Nahar Singh (supra) which is a division bench decision of this Court, the case of Vakil Singh & others v. State of Bihar ( AIR 1981 SC 1392 ) was relied upon. 7. In the case of Nahar Singh (supra) which is a division bench decision of this Court, the case of Vakil Singh & others v. State of Bihar ( AIR 1981 SC 1392 ) was relied upon. 7. In the instant case, regarding the identification of the article 'Ponchi', it was argued that its identification was no identification in the eye of law, because, the article Ponchi which was mixed with the articles to be identified from, was brought by the police and not by the Magistrate himself, and hence, there were all possibilities that the said article was shown to the prosecution witnesses prior to its submission before the learned Magistrate. It was also argued by him that the recovered Ponchi had 60 Maniyas tied in a red-thread, and there is nothing on the record to show that the Ponchi that was mixed at the time of the identification, had also 60 Maniyas tied in red-thread. So in the absence of this evidence that there must have been distinction between the Ponchi which was recovered by the police and that which was mixed at the time of its identification-parade, and in this context the learned counsel again relied on the case of Naharsingh (supra). 8. Considered the arguments of both the learned counsel. The argument of the learned counsel for the appellant regarding the identification of the accused as well as the Ponchi, has great substance. Apart from this, as held in the cases of Naharsingh (supra) and Noor Mohammad (supra), it is not at all believable that the prosecution witnesses had identified the accused in the torch-light. Therefore, the identification of the accused is not believed. Similarly, as mentioned above the identification of the Ponchi was not done in a proper and legal manner. It was the duty of the Magistrate to have called for a Ponchi for mixing it with the recovered Ponchi, and he should not have given that job to the police. In this case, there were all possibilities that the Ponchi which was brought for being mixed with the recovered one, was shown to the prosecution witnesses, before its submission to the learned Magistrate. This is no argument that the Ponchi for being mixed, was brought in a scaled packet, because, the packet was prepared by the police, so before sealing the packet, there were all possibilities that it was shown to the witnesses. This is no argument that the Ponchi for being mixed, was brought in a scaled packet, because, the packet was prepared by the police, so before sealing the packet, there were all possibilities that it was shown to the witnesses. Therefore, the identification-parade for the recovered article, Ponchi, was not held in a legal manner, and hence, no reliance can be placed on it. 9. There is no other evidence to connect the accused-appellant with the crime. The only evidence on the record is regarding identification of the accused and that of Ponchi. As held above, both the identification-parade has no value in the eye of law, and on such type of evidence, conviction of the appellant, cannot be sustained. 10. In the result the appeal is allowed. The appellant having not been found guilty of either under sections 457 & 395, his convictions and sentences for these s are set aside. He is on bail. He need not surrender to his bail-bonds, which are hereby cancelled.Appeal allowed. *******