B. N. DASH, J. ( 1 ) THE appellants have been convicted under S. 395, IPC and each is sentenced to undergo rigorous imprisonment for eight years and also to pay fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for a further period of one year. ( 2 ) THE prosecution case, shortly stated, is as follows :- The informant Satyanarayan Panigrahi (P. W. 1) has his parents and three brothers namely, Laxminarayan, Braja Narayan and Purna Chandra and all of them were residing in a house with their family members in village Uluda, the spot, map of which is Ex. 13. On 3-6-1988, the marriage of Niharika, daughter of Laxminarayan took place and in connection with that marriage many close relatives of the informant had assembled. In the mid-night of 6/7-6-1986, while the informant was sleeping on the outer verandah of his house along with some other male members and the other family members and their relatives were sleeping inside the house bolting the entrance door from inside, one of the culprits poked the body of the informant by the end of a lathi for which he woke up and found to his surprise that five culprits being variously armed, each holding a bag and torchlight had surrounded him. At the instance of the culprits when he raised his hands, they tied down both his hands and also the hands of those who were sleeping with him and as instructed by them, when the informant called out the names of Dolagovinda and Kedarnath who were sleeping in the entrance room, they opened the door. Therelafter, the culprits took all of them to the room where the parents of the informant were sleeping and then they went into different bed-rooms and collected valuables and gold ornaments by breaking open almirahs and boxes. They also collected wearing golden ornaments from the women folk and also a radio. When the well clock struck I am. one of the culprits directed the others to finish the operation immediately and thereafter all the culprits went outside his house carrying the booty collected and threatening the inmates not to disclose the incident to anybody. When the informant went outside the house he found that two other culprits who were guarding the house joined the other culprits and all the culprits then left the place. When the informant went outside the house he found that two other culprits who were guarding the house joined the other culprits and all the culprits then left the place. On the next day morning at about 8-30 a. m. P. W. 1 went to Bhogral Police station covering a distance of about, 30 K. M. and lodged the first information report, Ext. l. In course of investigation, the police seized from the house of the informant one guarantee card of a portable Philips Transistor as per Ext. 4 and also various other articles including seven lantherns and barring the guarantee card, the seized articles were left in zima of the informant, as per Ext. 2. On 22-6-1986, the Police officer of Pataspur Police station in the district of Modinapur seized various articles from the house of the appellant Manmath Maity in connection with their P. S. Case No. 6 dated 22-6-1986 and out of those articles, one two-band Philips radio was made over to the officer-in-charge of Bhograi Police station who seized the same, as per Ext. 1l, in connection with this case. The police also seized one cotton print saree, one blouse and one broken jeep light from the house of accused Jharana Das alias Maity in village Argora of Modinapur district, as per Ext. 10/1. Some gold ornaments and one torchlight were also seized from the house of the appellant Karunakar Behera at the instance of the appellant Subal Bhakta on 20-7-1986 as per Ext. 9/1. Arrangements were made for holding of test identification parades in respect of the suspects as well as the suspected seized stolen articles and after completion of investigation, one charge-sheet was submitted on 21-9-1986 not only against the appellants but also against the accused Jharana Maity and another charge-sheet was submitted against the accused Karunakar Behera. On the basis of those charge-sheets, two Sessions Cases i. e. , Sessions Trial Nos. 22 of 1987 and 28 of 1987 were started but since both the cases arose out of same Bhograi P. S. Case No. 68 of 1986, they were clubbed and heard together. In those sessions cases the appellants and the other two accused stood charged for the offences punishable under Ss. 395 and 412, IPC. ( 3 ) THE defence was one of denial. In those sessions cases the appellants and the other two accused stood charged for the offences punishable under Ss. 395 and 412, IPC. ( 3 ) THE defence was one of denial. ( 4 ) AT the trial, 10 witnesses were examined on behalf of the prosecution of whom P. Ws. 1 and 2 are respectively the informant and his brother Brajanarayan's wife; P. W. 3 is a witness to the seizure of the guarantee card of a radio from the house of the informant; P. W. 4 is the Judicial Magistrate Second Class, Balasore who conducted the test identification parades; P. W. 5 is a witness to the, seizure of several other articles from the house of the informant including seven lanterns; P. W. 6 is a witness to the seizure of some material objects from the house of accused Karunakar Behera in pursuance of a statement made by the appellant Subala Bhakta; P. W. 7 is a witness to the seizure list, Ext. 10/1, whereunder some articles were seized from the house of accused Jharana Maity and P. Ws. 8 to 10 are the Police Officers either of West Bengal or Orissa who took some part or other in the investigation of the case. On a consideration of the evidence on record, the, accused Karunakar Behera in Sessions Trial, No. 28 of 1987 was acquitted on 15-1-1988 as per the provisions of S. 232, Criminal Procedure Code, but in the judgment which followed, while the accused Jharana Maity was acquitted of both the charges, the appellants were acquitted of the charge under S. 412, IPC. However, the appellants were found guilty of the charge under S. 395, IPC and convicted and sentenced, as stated above. ( 5 ) IN convicting the appellants, the learned Sessions Judge has relied upon the direct evidence of P. Ws. 1 and 2 in court which, according to him, was duly corroborated by heir identification of the appellants in the test identification parades held previously. Another item of evidence relied upon by the learned Sessions Judge in convicting the appellant Subala Bhakta is the seizure of certain articles at his instance which were not only identified by P. Ws. 1 and 2 as belonging to them in court but also in a test identification parade held previously. It is contended by Mr. Another item of evidence relied upon by the learned Sessions Judge in convicting the appellant Subala Bhakta is the seizure of certain articles at his instance which were not only identified by P. Ws. 1 and 2 as belonging to them in court but also in a test identification parade held previously. It is contended by Mr. P. K. Dhal, the learned counsel for the appellants that the test identification parades having not been conducted properly, the learned Sessions Judge went wrong in his finding that the substantive evidence of P. Ws. 1 and 2 in court has been duly corroborated by their identification of the appellants in the test identification held earlier. According to the learned counsel, if the test identification reports are rejected as unworthy of credit then as per the settled principle of law, the evidence of identification of P. Ws. 1 and 2 in court cannot form the basis of conviction of the appellants. There are of course some decisions to show that the evidence of identification in court should not form the basis of a conviction unless the same is corroborated by the evidence of identification of the suspects in a test identification parade held earlier, but the same cannot be said to have universal application. It will always vary from case to case. Where the identifying witnesses had a long time to see and observe the culprits in sufficient light then their identification of the culprits in court which is substantive evidence can be safely relied and acted upon. But where any of the above conditions is absent the evidence of identification in court cannot form the basis of a conviction in the absence of identification of the culprits in a test identification parade held earlier. Therefore, in this case, it has to be found out whether there was sufficient time and light for P. Ws. 1 and 2 to clearly see and observe the appellants at the time of the commission of the offence. Therefore, in this case, it has to be found out whether there was sufficient time and light for P. Ws. 1 and 2 to clearly see and observe the appellants at the time of the commission of the offence. P. W. 1 has clearly stated that the occurrence took place in the night of 6-6-1986 at about 12-30 A. M. and when the wall clock struck 1 a. m. the appellant Manmath Maity who was being addressed as the 'sardar' by the other culprits directed to finish the operation and thereafter the culprits assembled in the entrance room and after going into the outer room where one Nayak Babu was staying with his family came outside the house where they were joined by the other culprits. This will go to show that the occurrence continued for more than half an hour and as such, P. Ws. 1 and 2 had sufficient time to observe and see the faces and physical features of all the appellants except that of the appellant Kartike Delai who, according to P. W. 1, was standing outside the house along with another. The evidence of P. W. 1 further shows that the culprits did not keep him confined in a room while they were removing articles from the persons of the female folk and from inside the bed-rooms and treasury. According to him, he was taken to all the bed-rooms through the inner varandah wherefrom the articles were removed by breaking open several containers as pointed out by him and also near the treasury imbedded to the well adjoining the inner verandah from which also articles were removed and in all the bed-rooms and inner varandah, lanterns were burning. Such evidence of P. W. 1 having not been shattered by way of cross-examination, was rightly relied upon by the learned Sessions Judge inasmuch as they clearly indicate that P. W. 1 had sufficient time and light to recognise those of the appellants operating inside the house. P. W. 2, another inmate of the house has also clearly deposed that while she was sleeping on the inner varendah along with other femalefolk, she woke up on hearing some sound inside the room of her father-in-law and at that time one of the culprits snatched away a gold necklace from her neck. P. W. 2, another inmate of the house has also clearly deposed that while she was sleeping on the inner varendah along with other femalefolk, she woke up on hearing some sound inside the room of her father-in-law and at that time one of the culprits snatched away a gold necklace from her neck. She has further deposed that besides the culprit who snatched away the gold necklace from her neck there was another culprit standing near the others who had eloped with her and being directed by them all the females brought out all the ornaments worn by them and made over the same to them. The other four culprits entered, inside different rooms and broke open the almirahs and boxes. According to her, two lanterns were burning on the inner varendah and one lantern was burning in each of the bed-rooms and she could identify the culprits clearly with the help of the lantern light. The seizure of seven lanterns by the Investigating Officer lends corroboration to the evidence of P. Ws. 1 and 2 that at the time of the occurrence several lanterns were burning on the inner varendah and inside the bed rooms and since the operation took place for more than half an hour there was sufficient time and light for this witness also to recognise those of the appellants operating inside the house. As such, the learned Sessions Judge was also perfectly justified in relying on the evidence of P. W. 2. ( 6 ) COMING to the test identification parade, it is seen that the appellants Sukumar Jena, Manmath Maity, Subal Bhakta, Debendra Dalai and three others had been put in a test identification parade held on 25-7-1986 and while the first three were correctly identified both by P. Ws. 1 and 2, the last named appellant was identified only by P. W. 1. The other two appellants namely, Sudhir Kumar Hui and Kartik Dalei were put in a test identification parade held on 30-91986 and they were correctly identified only by P. W. 1. It is also seen that two of the identifying witnesses namely, Brajanarayan Panigrahi and Laxminarayan Panigrahi who attended the test identification parade held on 25-7-1986 have not been examined in court. It is also seen that two of the identifying witnesses namely, Brajanarayan Panigrahi and Laxminarayan Panigrahi who attended the test identification parade held on 25-7-1986 have not been examined in court. It is also seen that although the test identification parade scheduled to be held on 30-9-1986 was held actually on that date, but such parade scheduled to be held on 29-7-1986 was propone to 25-7-1986 and the Magistrate holding the test identification parade (P. W. 4) having clearly stated that no notice had been issued to the identifying witnesses, it is submitted by Mr. Ojal for the appellants that the prosecution has not come forward with a clear case as to how the identifying witnesses attended the test identification parade held on 25-7-1986. According to the learned counsel, the Investigating Officer might have taken active part in bringing the identifying witnesses to the place where the test identification parade was held. This submission has been made to show that the identifying witnesses had chance to see the suspects prior to the holding of test identification parade in which case the test identification parade loses of its significance. Such submission cannot be accepted because P. W. 1 has clearly deposed that they attended the teat identification parade on the date in question being intimated by a constable and that there was no occasion for them to see the suspects prior to the holding of test identification parade after the occurrence. In the test identification parades held on both the date the suspects identified by P. Ws. 1 and 2 having worn half pants and there being no clear evidence that the other persons who had been mixed up with the suspects in both the, test identification parades had similarly worn half pants, it is contended on behalf of the appellants that the test identification parades, had not been properly conducted. Such argument would have carried some force if there would have been positive evidence that none of the other persons who had been mixed up with the suspects had worn half pants. But there is no such evidence and as such the evidentiary value of the test identification parade can never be said to be nil. Such argument would have carried some force if there would have been positive evidence that none of the other persons who had been mixed up with the suspects had worn half pants. But there is no such evidence and as such the evidentiary value of the test identification parade can never be said to be nil. It is further submitted behalf of the appellants that when so many inmates had occasion to see the culprits operating in the house and when many of them have not been examined, the evidence of P. Ws. 1 and 2 cannot be safely acted upon. I am unable to persuade myself as, to why the evidence of P. Ws. 1 and 2 should be viewed with suspicion when other inmates I of the house have not been examined. Their examination would have merely multiply the evidence on record. When the evidence of P. Ws. 1 and 2 does not suffer from any infirmity whatsoever, the learned Sessions Judge was perfectly justified in relying on the evidentiary value of the test identification parades as furnishing a piece of corroborative evidence to the substantive evidence of P. Ws. 1 and 2 in court. It is lastly contended that such of the suspects having not been put to test identification parade separately, the evidentiary value of those test identification parades become practically nil and in support of such contention reliance has been placed on 1988 OCR 74 Niranjan Sethi v. State. The decision no doubt, supports the contention of the learned counsel, but in my opinion, such decision cannot help universal application. If there are other defects in conducting test identification parades, then such a circumstance may be taken to be an additional factor in discarding the test identification parade. The principle laid down in the aforesaid decision is obviously for eliminating identification of suspects by chance. If the proportion of mixing outsiders with a suspect is quite high, then the possibility of identification by chance is ruled out. In this case, it is not submitted that the proportion of the outsiders mixed with the suspects was low. That being so, the contention in my opinion, is without merit. If the proportion of mixing outsiders with a suspect is quite high, then the possibility of identification by chance is ruled out. In this case, it is not submitted that the proportion of the outsiders mixed with the suspects was low. That being so, the contention in my opinion, is without merit. ( 7 ) THE other item of evidence connecting I appellant Subal Bhakta, as stated above, is the seizure of certain articles from the house i of accused Karunakar Behera (since acquired) at his instance which have been duly identified by P. Ws. 1 and 2 not only in court but also in a test identification parade held earlier. The alleged statement of appellant Subala Bhakta leading to discovery of the seized articles having not been recorded in the seizure list, the learned Sessions Judge was correct in his finding that S. 27 of the evidence Act cannot be made applicable for such I seizure. Nevertheless, he has acted upon such seizure to fasten the said appellant with liability. The action of the learned Sessions Judge cannot be found fault with because the conduct of the appellant is admissible under S. 8 of the Evidence Act. ( 8 ) FROM the aforesaid discussion it is quite clear that PWs. 1 and 2 had sufficient time and light to see and observe those of the I appellants who operated inside the house and as such, their substantive evidence in court which has been duly corroborated by their identification of those appellants in the test identification parades held earlier, is quite dependable. That being so, the conviction based on such evidence cannot be disturbed. So far as appellant Kartik Delai is concerned, there is no evidence that he had gone inside the house for the purpose of committing dacoity. The evidence of P. W. 1 clearly shows that he saw him along with another joining the other appellants when they came out of the house. So far as appellant Kartik Delai is concerned, there is no evidence that he had gone inside the house for the purpose of committing dacoity. The evidence of P. W. 1 clearly shows that he saw him along with another joining the other appellants when they came out of the house. That being so, it is liable to be held and I hold that P. W. 1 had very little time to observe those culprits who remained outside the house guarding and there is no sufficient material on record to show that there was sufficient light where those two culprits were seen by P. W. l. Keeping this in view, although P. W. 1 has identified him in court as well as in the test identification parade, I do not feel it safe to act upon his evidence to hold that he was one of those two culprits who joined the other appellants outside the house in question. As such, he should be given the benefit of doubt. Some decisions have been cited in support of the well established rule of criminal justice that "fouler the crime higher the proof". Applying this principle also; I find that the evidence in respect of all the appellants except Kartik Dalai being clear and clinching, their conviction has to be upheld. ( 9 ) IN the result, the appeal is allowed in part. While acquitting the appellant Kartik Dalai, I uphold the conviction and sentence passed against the other appellants and as such, the appeal by them is dismissed. Appeal partly allowed. .