S. K. PHAUJDAR, J. ( 1 ) THE present two appeals arise out of a single judgment dated 28. 10. 1977 by Shri N. S. Gupta, H. J. S. IV Additional Sessions Judge, Bulandshahar, in Session Trial No. 247 of 1975 heard along with Session Trial No. 373 of 1976. The learned court below had considered charges against six accused persons and convicted the present appellants, Nanhey, Mustaq and Kanchid under Section 396 LP. C. and sentenced each of them to life imprisonment. Appeal No. 2578 of 1977 was preferred by Nanhey and Mustaq, while the other Appeal No. 2579 of 1977 has been preferred by Kanchid challenging the orders of the conviction and sentence. ( 2 ) IT appears that there had been a dacoity in the house of one Tejpal Singh in village Nagla Harnam, police station Anoop Shahar in the district of Bulandshahar in the night between 23/24. 7. 1974, and during commission of the dacoity Tejpal Singh was shot dead. After investigation, the present three appellants along with others were charge-sheeted and were tried before the Additional Sessions Judge as aforesaid. None was named in the First Information Report and the present appellants have been convicted on the basis of their identification in test identification parade followed by their identification during trial by some witnesses or the other. There is no case of recovery of any incriminating material from any of these appellants in connection with the present charge. The learned Sessions Judge, as it appears from his judgment, had discussed the evidence of identification alone against these appellants and on his satisfaction about the reliability of such evidence, he has recorded the order of conviction and sentence. ( 3 ) THE learned advocates for the appellants and the State took us through the evidence and from their arguments the following points emerge for consideration: (1) Whether the witnesses had a chance to see the dacoits while committing the dacoity or while going away. (2) Whether there was unusual delay in holding test identification parades. (3) Whether the witnesses had any chance to see the accused persons after the occurrence and before the holding of test identification parades. ( 4 ) BEFORE taking up discussion on the evidence on identification certain bare facts may be indicated. The occurrence took place at 9. 00 p. m. in the night between 23/24. 7. (3) Whether the witnesses had any chance to see the accused persons after the occurrence and before the holding of test identification parades. ( 4 ) BEFORE taking up discussion on the evidence on identification certain bare facts may be indicated. The occurrence took place at 9. 00 p. m. in the night between 23/24. 7. 1974 and the report to the Thana was made on the next morning at f ). 30 a. m. by Indrapal Singh, a nephew of the deceased Tejpal Singh. The present appellant Nanhey was arrested from near village Karanpur, Police Station Anoop Shahar, on 10. 8. 1974. Appellant Mustaq was arrested from near village Junedpur, Police Station Sikandrabad on 14. 8. 1974. For these two persons a test identification parade was held on 31. 8. 1974. Appellant Kanchid was arrested on 8. 2. 1975 by the S. O. of Aurangabad Police Station with an unlicensed gun. For him a test identification parade was held on 11. 4. 1975. The test identification parade charts are exhibit on record. The magistrate who hold the test identification parades are also witnesses examined at the trial. ( 5 ) THE witnesses who were called upon to identify the suspects in the test identification parades and who had identified some or none at the trial are Indrapal Singh, Sukhveer Singh, Bishambhar Singh, Jaipal Singh, Ajmat Singh and Jagveer Singh. Indrapal Singh is P. W. 1. Although he had identified the present appellant Nanhey in the test identification parade, he had failed to identify him or anyone during trial and his evidence on the point of identification, is, therefore, a nullity as identification in the test identification parade is never a substantive evidence, at best it is corroborative. Sukhveer Singh, P. W. 2, had identified all the three appellants in the test identification parades as also a wrong person. He did not identity Nanhey in court and we will consider his evidence as against Mustaq and Kanchid only in the light of the point formulated by us. P. W. 3 Ajmat Singh had identified all the three appellants in the test identification parades. He has not identified any of them during trial and his evidence may also, like that of P. W. 1, be not considered. P. W. 6 Bishambhar has consistently identified Nanhey and Mustaq both in test identification parade and in the trial. P. W. 3 Ajmat Singh had identified all the three appellants in the test identification parades. He has not identified any of them during trial and his evidence may also, like that of P. W. 1, be not considered. P. W. 6 Bishambhar has consistently identified Nanhey and Mustaq both in test identification parade and in the trial. P. W. 7 Jagveer Singh had identified Nanhey and Mustaq both in court and test identification parade. P. W. 10 Jaipal has also successfully identified all the three appellants in test identification parade and during trial, although he had identified two wrong persons during the test identification parade. Thus, we have before us the evidence of P. W. 2, P. W. 6, P. W. 7 and P. W. 10 on the point of identification. Together with this we are to go through the evidence of P. W. 13 Pritam Singh, P. W. 15 Hardwarilal, P. W. 17, B. P. Tyagi, P. W. 19 Balveer Singh, P. W. 21 Suresh Chandra Sharma, P. W. 21 Rohtash Singh and P. W. 23 Nanak Chand - all on the point of arrest and detention of different appellants, as also the evidence of P. W. 14 P. S. Sharma and P. W. 20 R. S. Singh on the point of test identification parade. We shall also consider the questions put to the accused-appellants under section 313 Cr. P. C. and the first information report to appreciate the evidence and to judge the legality or otherwise of the order of conviction. ( 6 ) THE first Information Report was lodged on 24. 7. 1974 at 6. 30 a. m. at Anoopshahar police station which is nine miles away from the place of occurrence. The first information report suggest that all the witness had assembled near a fire that was lit by one of them near the road extending from north to south in the village of occurrence. The first information report further suggests that when the dacoit had entered the house of the victims, the intimates went up to the roof with lantern. People from a neighbouring village assembled with guns and when the dacoit found themselves surrounded they came out of the main door of the house of the victim while opening fire from their guns and they went up along with the road towards north. People from a neighbouring village assembled with guns and when the dacoit found themselves surrounded they came out of the main door of the house of the victim while opening fire from their guns and they went up along with the road towards north. One Kanhaiya tried to catch hold of the dacoits near the house of Jagveer Singh and he was shot at. The first information report further indicates that the dacoits were seen in the light of the fire that was kindle as also in the light of electric torches. That means that they were seen on the road only. ( 7 ) INDRAPAL Singh P. W. 1, although he had not successfully identified any accused during trial, had made some relevant statements touching the point of identification. From his deposition it appears that there is a road ill the village leading from north to south and the house of the victim Tejpal Sing lies to the west of this road. The houses of other witnesses Indrapal, Sukhveer and Jagveer lie to the east of this road and the sketch map proved by the police officer indicates that the house of Indrapal lies opposite to the house of Tejpal. To further north of the house of Indrapal lies the house of Sukhveer Singh and to next north is the house of Jagveer Singh and in front of this house of Jagvecr Singh, thc fire was lit on a stack of sugarcanc leaves. ( 8 ) SUKHVEER Singhs evidence disclosed that he had seen dacoits fleeing away and he could see them in glare of the fire as also in the light of battery torches. He has also accepted in cross-examination that the miscreants had opened fire white going away. He further accepted that when the dacoits were firing from their guns the villagers went under some coverage gaon wale aar le lete they. He had also accepted that one of the persons standing with him had received injury. In further cross-examination this witnesses accepted that the fire was lit two or three minutes prior to the escape of the dacoit. P. W. 6 Bishambhar Singh claims he had seen the dacoit while coming out of the house of the victims and going towards the north. The dacoit were armed with lathies and guns and one Kanahiya was shot at when he tried to resist the dacoits. P. W. 6 Bishambhar Singh claims he had seen the dacoit while coming out of the house of the victims and going towards the north. The dacoit were armed with lathies and guns and one Kanahiya was shot at when he tried to resist the dacoits. He claims, he had seen the dacoits in the glare of the fire. He claims to have been standing in the open and not behind any shelter. Neither he nor other witnesses got any injury. P. W. 7 Jagveer Singh is the person who had lit the fire. He claims to have seen the dacoits in the glare of that fire. According to him, Kanhaiya got injured on being fired upon by the dacoits. He had not given any physical description of the miscreants to any body. Dacoits were shouting that ay body daring to stop them would be killed. The dacoits were running away and also fired while so running. P. W. 10 also says that the dacoit5 started firing while coming out of the house and one Kanhaiya was shot at by them when he tried to intervene. The dacoits were armed with guns, ballams and lathies. This witness reached the spot when Jagveer Singh had already lit the fire and other witnesses were already there. ( 9 ) THE learned Sessions Judge, while taking up the evidence of identification did not go to the question whether identification was possible in the circumstances of the incident as placed by the witnesses. We have before us a situation in a village where the villagers got up on the sound gunfire. It is true that there is consistent claim by the witnesses that they had assembled by the road side. But the means of identification according to them is the fire that was lit by Jagveer Singh in front of his house and it has come in evidence that this fire was lit only two or three minutes prior to the escape of the dacoits. It is also in evidence that the dacoits were not only threatening of dire consequence if any person dared to come, but also actually opened fire and one of the assembled persons got injured. It is natural that under these circumstances and more so when the witnesses who have deposed on the point of identification had no arms to retaliate, the witnesses would hide themselves to safety. It is natural that under these circumstances and more so when the witnesses who have deposed on the point of identification had no arms to retaliate, the witnesses would hide themselves to safety. In fact, there is such an admission in the evidence of P. W. 2 Sukhveer Singh that when the dacoits had opened the fire, the villagers took shelter behind some coverage. The claim of the witnesses in trial is that they saw the dacoits running away. P. W. 2 Sukhveer Singh, however, stated before the Magistrate holding the test identification parade that he had seen the dacoits opening fire and entering in and coming out of the house. P. W. 10 Jaipal Singh had claimed during test identification parade that he had seen the dacoits looting and killing (loot mar karte dekha ). From the nature of the situation as discussed above it can well be presumed that the witnesses must have been panic-stricken due to indiscriminate fire by the dacoits and in fact they had concealed themselves behind some coverage as admitted and no chance to see the dacoits could be availed of during the two to three minutes the fire was there near the dacoits. A doubt always remain regarding the fact of ability of the witnesses to see the dacoits and to remember their faces under such a situation. ( 10 ) WE may now go to the question of test identification parade to see if the witnesses had any chance to see the accused persons after the occurrence and before the test identification parades and if there was any unusual delay in holding the test identification parades. We shall take up the evidence of P. W. 13, 15, 17, 19, 21, 22 and 23 initially. P. W. 13 Pritam Singh is the police S. I. who took charge of the accused Mustaq on 14. 8. 1974 on being brought by Inspector B. E. Tyagi. His evidence disclosed that the accused Mustaq was taken out of the police station again for directing certain recovery. Mustaq was away from the police station for about six hours during the day on 14. 8. 1974. On the next day Mustaq was forwarded to Bulandshahar along with constable Nanak Chand. P. W. 17 B. P. Tyagi who was an inspector of police arrested Mustaq on 14. 8. 1974. Mustaq was away from the police station for about six hours during the day on 14. 8. 1974. On the next day Mustaq was forwarded to Bulandshahar along with constable Nanak Chand. P. W. 17 B. P. Tyagi who was an inspector of police arrested Mustaq on 14. 8. 1974. He does not speak anything concerning Mustaq although he was left under his custody from about 12 to 6 p. m. on that date for directing a recovery and was taken out of the Thana. P. W. 23, Nanak Chand took the accused Mustaq on 15. 8. 1974 when he was sent to the jail. For accused Nanhey we have before us the evidence of P. W. 18 Tika Ram Malik S. I. of police. He had arrested the accused Nanhey who was sent to Bulandshahar through constable Hardwari Lal. This Hardwari Lal is P. W. 15 and according to him accused Nanhey was lodged in Bulandshahar jail on 11. 8. 1974. He reached Bulandshahar at 11. 00 a. m. but he could not say at what time the accused had been lodged in the jail. For these two persons Mustaq and Nanhey we find that the prosecution evidence is consistent that while in police custody every care was taken to keep them Baparda. But we have before us the evidence of the identifying witnesses also and a reference may be made to the statement of P. W. 10 Jaipal Singh who admits that within 15 days of the incident they could come to know that the dacoits had been arrested. This tallies broadly with the dates of arrest of Nanhey and Mustaq. We may look to the evidence of P. W. 3 Ajmat Singh as well. He admits that on the date of dacoity, one Banarsi dacoit was arrested who had named all the other dacoits, in presence of the police. He also admits that within 10 days of the incident he could know that dacoits had been arrested. The plea of the accused persons in their examinations under Section 313 Cr. P. C. is that they were not kept Bapardat and were shown to the witnesses may not, therefore, be ruled out as an absurdity and the selfsame plea was taken before the Magistrate by the accused persons where the test identification parade was arranged. The plea of the accused persons in their examinations under Section 313 Cr. P. C. is that they were not kept Bapardat and were shown to the witnesses may not, therefore, be ruled out as an absurdity and the selfsame plea was taken before the Magistrate by the accused persons where the test identification parade was arranged. There was, however, no unusual delay in holding the test identification parade for Nanhey and Mustaq. ( 11 ) THE case of the third appellant Kanchid, however, stands on a different footing on this point. He was arrested long after the incident on 8. 2. 1975 by P. W. 21 Suresh Chandra Sharma who arrested him within police station Aurangabad along with an unlicensed gun. There is no case of the prosecution that this gun was in any way connected with the incident of the dacoity. There is no evidence on record an to how his complicity in the present case transpired we have further the evidence on the point of arrest of this appellant Kanchid through P. W. 16 Sharwan Pal Singh. He took the accused Kanchid to Bulandshahar on 9. 2. 1975. The test identification parade for Kanchid was held on 11. 4. 1975 i. e. more than two months after his arrest. There was no evidence on record that Kanchid, on the date of his arrest, had any connection with the case of the dacoity. It was only a case of recovery of an unlicensed gun from him and there was no apparent reason fro him to be kept baparda. Moreover, there is no explanation for this long delay in arranging his test identification parade and more-so on the face of his consistent assertion during test identification parade, during cross-examination of witnesses and during examination under Section 313 Cr. P. C. that he was shown to the witnesses. ( 12 ) THE learned Sessions Judge had relied upon the identification of all the three appellants in court by different witnesses. The original record is before us including the sheets covering the examination of the accused persons under Section 313 Cr. P. C. One accused Sheru (who was acquitted) was asked a question touching his identification in court by different witnesses. But the appellants, Nanhey, Mustaq and Kanchid, were not asked any question concerning their identification in court. The original record is before us including the sheets covering the examination of the accused persons under Section 313 Cr. P. C. One accused Sheru (who was acquitted) was asked a question touching his identification in court by different witnesses. But the appellants, Nanhey, Mustaq and Kanchid, were not asked any question concerning their identification in court. In fact, in page 3 of the examinations of the appellants under Section 313 Cr. P. C. a typed question No. 7 had been scored through and nothing has been written against the column for answer. It is clear that the vital circumstance of identification of all these appellants in court was not put to them and no opportunity was afforded to them to explain this vital circumstance. This appeal is of 1977 and long 17 years have passed by and it is not desirable that to correct this procedural error on the part of the Sessions Judge touching a valuable right of the accused, the matter should be referred backhand, more so when there is a doubt concerning the ability of the witnesses to see the dacoits during the occurrence. ( 13 ) IN the result, the aforesaid two appeals stand allowed. The orders of conviction and sentence of the appellants in these two appeals are set aside. The appellants are acquitted of the charges levelled against them. It is reported that all of them are on bail. They are also discharged from their bail bonds. Appeal allowed. .