G. MALAVIYA, J. ( 1 ) APPELLANTS along with Ram Charan, Parsu and Ram Singh were tried by the Addi. District and Sessions Judge, Lalitpur in Sessions Trial No. 58 of 1976 u/ss. 395/397 Indian Penal Code whereas the appellants had been convicted for the said, charge and awarded life imprisonment the other three accused Ram Charan, Parsu and Ram Singh were given the benefit of doubt and had been acquitted. The appellants had preferred this appeal against their conviction and sentence, we have heard Sri P. H. Mishra learned counsel for the appellants and Sri A. K. Singh learned counsel for the state. ( 2 ) ON the night between 13th and 14th May, 1976 at about mid night some dacoits entered the house of Mulayam Singh (P. W. 2) in village Kumraula, police station Jakhlaun in district Lalitpur by Scaling the tree situated in front of the house. Only five or six dacoits had climbed on the top roof of the house where Chandra Bhan Singh (P. W. 4) son of complainant Mulayam Singh was sleeping along with his wife. They started beating Chandra Bhan Singh and asked him where was the gun and Babba. On his alarm the complainant his brother, nephews and father who were sleeping in other parts of the house woke up and went to the verandah. The complainant peeped through some by the side of the door and found that some seven or eight dacoits were standing outside with guns and were firing the same. One of the dacoits was trying to tear apart the main door with a Kulhari. Mulayam Singh complainant kept barrel of his gun through the opening in the wall outside and fired. The fire hit two of the dacoits who started crying MAR DALA MAR DALA. The dacoits who had claimed on the roof came down. Meanwhile one Gulab Singh started firing from his gun. The dacoits then picked up two of the injured persons and tried to escape to west after moving towards the south. The gun shots as also the alarm attracted the other person in. the village with the result that a large number of persons arrived with lath is and torches chasing the dacoits. Sujan Singh (P. W. 6) meanwhile put fire to some grass which was lying in front of his house which produced enough light. The gun shots as also the alarm attracted the other person in. the village with the result that a large number of persons arrived with lath is and torches chasing the dacoits. Sujan Singh (P. W. 6) meanwhile put fire to some grass which was lying in front of his house which produced enough light. In the said light as also in the light of torches and the full moon which was in the sky the members of the complainant family as also the village people could see the features of the dacoits whom they recognised under whom were about 12 or 13 in number. The dacoits were chased by all the persons who had assembled there and after about a furlong and a half on the west of the village hear the filed of the complainant they could encounter the dacoits who were trying to carry away the two injured dacoits. The villagers tried to encircle the dacoits. The dacoits, who had been injured initially was put sown by the other dacoits who fled away firing by entering the nala and escaped. Apprehending that the dacoits may return to take away the injured dacoit the village people who had assembled brought the injured dacoit from that place in front of the complainants house where he was found to be dead. The complainant also found in the place meant together the cattles which, was in front of his house, 8 pairs of shoes, four shirts, one pant, one military type of cap, one bundle of Prem bidi, one packet of Panama cigarette and on tehmad. ( 3 ) AFTER the incident the complainant went to the police station Jakhlaun which was at distance of about four miles, where he lodged the report against 12 or 13 unnamed and un-known dacoits at 6. 10 a. m. in the morning of 14th May, 1976. The case was registered at the police station where after the investigation of the case was taken up by P. W. 12 S. I. Kaptan Singh who apart from completing other formalities prepared the site plan, recorded the statement of witnesses Chandra Bhan Singh, Mulayam Singh, Hammir Singh, Dev Singh, Sher Singh, Sujan Singh, Juthuaand Yare Lal. The case was registered at the police station where after the investigation of the case was taken up by P. W. 12 S. I. Kaptan Singh who apart from completing other formalities prepared the site plan, recorded the statement of witnesses Chandra Bhan Singh, Mulayam Singh, Hammir Singh, Dev Singh, Sher Singh, Sujan Singh, Juthuaand Yare Lal. Thereafter the investigation was taken up by Station Officer Jai Ram Singh Chandel (P. W. 10) The injuries of P. W. 4 Chandra Bhan Singh were examined by P. W. 10 Dr. K. C. Jam at the District Hospital, Lalitpur on 14/5/1976 at 5. 15 P. M. He found four lacerated wounds, 4 contusions and one multiple abrasion on the person of Chandra Bhan Singh. The same doctor also performed autopsy on the dead body, one of the dacoits on 15/5/1976 at 9 a. m. He found that the deceased had died of shock and haemorrhage on account of ante mortem injuries. He also, found that the injury Nos. 5 and 6 could be cause due to friction, injury No. 10 from some blunt weapon, injury Nos. 3,4,5, 6, 7 and 8 from fire arm and injury Nos. 1,2,9 and 10 from some blunt weapon and that the said injuries could be caused at 12 mid night on the night between 13114th May, 1976. All the accused persons were arrested by Station Officer Jai Ram Singh Chandel (P. W. 19) On 31. 5. 1976 he had gone in search of the accused of the said crime. He came to know that appellants Hammira, Halka, Lakhu, Amar Singh and one Ram Charan had been arrested in connection with a case of Khillan of police station Kotwali, Lalitpur u/ss 399/402 I. P. C. where after their complicity in this crime was also found out. He got them into his custody, made them bapardaat Thana Kotwali Lalitpur at about 5. 30 a. m. He also arrested, one Parsu accused from his house at 6 a. m. on 15/6/1976 whom he made baparda on the spot and brought to police station Jakhlaun on the same day baparda. He was also sent to jail on the same day baparda at 12. 30 p. m. It was after arrest of Parsu that complicity of the other accused persons viz. Appellants Akbar, Ram Singh, Mahadeo and another accused Ram Singh came to light. He was also sent to jail on the same day baparda at 12. 30 p. m. It was after arrest of Parsu that complicity of the other accused persons viz. Appellants Akbar, Ram Singh, Mahadeo and another accused Ram Singh came to light. The Station Officer raided their house and arrested them at 8 Oclock on 17/6/1976 in the morning. They were also made baparda and were entered at the police station at 11. 30 and sent to jail baparda at 1. 30 P. M. He gave a report on 15/6/1976 and 18/6/1976 for identification of these accused persons where after the test identification parade of all the appellants was conducted by P. W. 11 the Executive Magistrate, Lalitpur on 31/7/19t76 in district Jail, Jhansi. After completing the investigation he submitted the charge sheet against the accused persons who were tried by the Additional District and Sessions Judge, Lalitpur. ( 4 ) THE accused persons denied the charge. Whereas accused Hammira Amar Singh, Ram, Charan, Khalawan, Halka, and Lakhu had pleaded that they had been falsely implicated and had been shown to the witnesses at the police station, rest of the accused pleaded their false implication. Accused Sant Ram, Ram Singh, Maha Deo and Akbar Singh also pleaded that they suffered from night blindness. They produced Dr. G. D. Gupta as D. W. 1 in their defence at the trial in support of the plea of their night blindness. ( 5 ) BEFORE the trial court the prosecution apart from examining the two investigating officers P. W. 12 S. I. Kaptan Singh and P. W. 19 S. O. Jai Ram Singh Chandel as also the Executive Magistrate who had conducted the identification parade of the accused persons on 31. 7. 1976 examined P. W. 2 Mulayma Singh, P. W. 3 Dev Singh, P. W. 4, Chandra Bhan Singh P. W. 5, Sher Singh, P. W. 6, Sujan Singh P. W. 7, Ban Singh and P. W. 8 Joran as eye witnesses of the occurrence out of these witnesses Mulayam Singh was the complainant and Chandra Bhan Singh was the injured witness. The evidence of other witnesses during the trial was of formal nature some of which by means of affidavits. The evidence of other witnesses during the trial was of formal nature some of which by means of affidavits. All these witnesses narrated the fact that a dacoity had taken place at the residence of Mulayam Singh on the night between 13th and 14th May 1976 when one of the dacoits had died and on the pressure of the village-people the dacoits had ultimately to leave the village leaving the dead body of one of the dacoits. It is also relevant to note that the dacoits were not able to loot any property in their bid to commit dacoity, the other relevant fact is that the incident had taken place on the night of a full moon. ( 6 ) WHAT is relevant for this case is that out of the eye witnesses of this case Mulayam Singh P. W. 2 had identified Hammira, Halka, Lakhu, Amar Singh and Ram Charan in the test identification parade. However, in the court he failed to put his hand on Ram Charan but pointed at Ram Singh as the accused who had been identified by him. P. W. 3 Dev Singh identified Hammira, Halka, Amar Singh, Ram Charan, Parsu Akbar Singh and Mahadeo During the test- identification parade. P. W. 4 Challdra Bhan identified all the 11 persons who had been set up for identification except Ram Charan. P. W. 5 Sher Singh identified accused Hammira, Halka, Lakhu, Amar Singh, Sant Ram Akbar Singh, Ram Singh and Mahadoo but committed mistake in the case of Ram Charan. P. W. 6 Sujan Singh correctly identified accused Hammir, Halka and Amar Singh. P. W. 7 Ban Singh identified Hammira, Halka, Amar Singh, Khelawari, Sant Ram Akbar Singh and Mahadeo in the test identification parade but committed mistake in the case 9f Ram Charan. P. W. 8 Jorau had identified accused Hammira, Haka, Amar and Akbar Singh and had committed mistakes in the identification of Ram Charan. Thus it would be seen that Hammira appellant was identified by seven witnesses and Halka by six witnesses, Lakha by three witnesses, Amar Singh by six witnesses out of which Dev Singh failed to identify him in court, Khelawan by two, Sant Ram by three, Akbar Singh by four and Mahadeo by four eye witnesses examined in this case, with the result that they were convicted. The other accused Ram Charan was identified by witnesses Mulayam P. W. 2 and Dev Singh P. W. 3 at the test identification parade was identified by the P. W. 3 Dev Singh, P. W. 4 Chandra Bhan Singh and P. W. 8 Jorau at the identification parade but Dev Singh and Jorau, failed to identify him in the court. Ram Singh one of the accused was also identified by only two eye witnesses examined in the court at the test identification parade i. e. P. W. 4 Chandra Bhan and P. W. 5 Sher Singh but Sher Singh failed to identify him in the court. On the basis of the identification the Addi. Sessions Judge convicted the appellants u/s. 385 Indian Penal Code but acquitted Ram Charan, Parsu and Ram Singh as there did not exist even two good identifications against them. ( 7 ) ARGUING the appeal on behalf of the convicted appellants Sri P. N. Mishra has stated that a careful scrutiny of the evidence leads to the conclusion that the evidence of at least four of the eye witnesses has to be rejected on the basis of too good an identification to be believed the points that the performance of P. W. 4, Chandra Pal was 10 good and one bad in the case of 11 persons who had been put for identification, Sher Singh 8 good and one bad, Dev Singh seven good and no mistake and Yeer Singh 7 good and one bad. He has alleged that on the plea of the light these witnesses as a matter of fact could never identify the persons who had gone to commit dacotiy and Still such an excellent identification of their parade can be indicative of only one fact that the accused persons had been shown to them at some point time before their identification. To elaborate this point Sri P. N. Mishra has drawn our attention to the site plan of this case which indicates that the fire had been ignited towards the south from the place of the incident and except of P. W. 6 Sujan Singh P. W. 7 Veer Singh and P. W. 8 Jorau who were in the southern side of that force other witnesses had the opportunity to see the dacoits from the northern side. His contention is that if a fire had been lit in the southern direction and if the witnesses looking at the witnesses with the fire in the back ground, it could not have been possible for them to mark the features of the dacoits. He has also put great emphasis on the fact that whereas Chandra Bhan Singh P. W. 4 was given a good thrashing by about 5 or 6 persons at the roof top with the result that he had suffered nine injuries on his person including two lacerated wounds on the scalp he was stall able to person who is given a good beating cannot normally recognise his assailant only in the moon light if he had been suddenly waken up but this witness instead of identifying not only those five or six witnesses also claims to have identified all other witnesses who were on the ground floor also, despite the fact that he had been severely beaten and according to learned counsel for the appellants this could never have been possible unless some external aid had been provided by the investigating agency to enable him to identify all the appellants at the test identification parade. ( 8 ) ON the other hand learned counsel for the state has argued that the dacoity was committed on a full moon night and, therefore, even if the light emanated by fire from straw heap was not available the witnesses could certainly identify the dacoits in the moonlight alone, more so as the dacoits had been chased, encircled at a particular point and then one of the dacoits who had been injured captured by the witnesses. ( 9 ) WE have considered the respective submissions of the counsel for the parties. ( 9 ) WE have considered the respective submissions of the counsel for the parties. We find force in the contention of learned counsel for the appellants that so far as P. W. 2 Mulayma Singh, P. W. 3 Dev Singh, P. W. 4 Chandra Bhan Singh and P. W. 5 Sher Singh are concerned they were to wards the north and could not have a good impression about the features of the dacoits because Mulayam Singh and Dev Singh were watching them from inside their houses or from the roof top and Dev Sing had Sher Singh were watching them from a distance on the northern side opposite which was but ling the fire, which itself affect the observation power of a Person during the night. The performance of Chandra Bhan Singh P. W. 4 of identifying 10 out of 11 dacoits is all the more surprising. He has clearly stated that he was sleeping on the roof when five or six dacoits wearing only underwear came there and started beating him asking for the gun and his father. He said that he then got up and raised the alarm. Meanwhile, he says, that some dacoit was shot on, the ground floor when the dacoits cried MAR DALA. When the dacoits who were near him jumped down and went away he could then see 12 or 13 dacoits who went away along with two dacoits who had been injured. This shows that even after having been severely beaten which caused four lacerated wounds, four contusions and one multiple abrasion he mustered up courage to 100/-: down from the roof and then could recognised all the dacoits while they were going away on the opposite direction with two of the injured dacoits. It is impossible to believe that he could have observed the feature of the fleeing dacoits so well that he was able to recognise them at the test identification, parade. Consequently there is force in the submission of learned counsel for the appellants that the testimony of P. W. 4 Chandra Bhan Singh alone is indicative of the fact that external aid had been provided by the investigating agency to the witnesses to recognise the dacoits in between the date of the incident and the date of the test identification parade. The fact that P. W. 3 Dev Singh was also able to pick up 7 out of 11 and P. W. 5 Sher Singh was able to pick up 8 out of 11 dacoits at the test identification parade also is suggestive of the fact that some external aid had been provided to the witnesses thus the evidence of identification looses its sanctity. ( 10 ) THE contention of learned counsel for the state is that even if the evidence of these witnesses is discarded still the evidence of P. W. 6 Sujan Singh, P. W. 7 Veer Singh and P. W. 8 Jorau who were on the south should be accepted more so as they were in perfect position to observe the features of the dacoits who were passing by the side of the fire along with two or the injured dacoits which would have given them a very proper and sufficient opportunity recognise the dacoits. We agree that these persons were at a place from where they should have been able to recognise the dacoits but that is relevant in this connection to be noted is that if the identification of the witnesses who were situated in the north is excludes then we have the identification of these three persons against accused Hammira, three against Amar Singh and two against Jalka accused alone, out of these three witnesses the performance of Veer Singh P. W. 7 in 7 out of 11 which renders his testimony to be too good to be believed. This could mean that there is hardly one identification against Jalka and two against Hammira and Amar Singh. Once we have a doubt that some external aid had been provided to 12, the witnesses in the matter of test identification parade, in this case we do not feel it safe to convict even accused Hammira and Amar Singh on mere two minimum good identifications against them. ( 11 ) THE result is that all the accused appellants are entitled to benefit of doubt ( 12 ) THIS appeal, therefore, succeeds and is allowed. The conviction and Sentence of the appellants u/s. 395 Indian Penal Code is set aside. They are on bail. Their bail bonds are discharged. They need not surrender. Appeal allowed. .