Judgment I. P. Singh, J. 1. - Since both these appeals arise out of the same judgment, they have been heard together and are being disposed of by this common judgment. 2. Appellant, Rajendra Paswan of cr. Appeal No.202 of 1985 and appellant umesh Yadav of Cr. Appeal No.212 of 1985 have been convicted under sec.3% of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life each. 3. The prosecution case, in brief, is that on 5th date of November, 1980 at about 11.30 P. M. some dacoits came to the house of the informant namely, saryug Singh and woke him while he was sleeping at his Dalan in village Bibhutipur, district Samastipur. When the informant got up, he was that one dacoit had pointed country made pistol at him and he was also flashing torch light at his face. He gave the description of the dacoit and the clothes worn by him in his fardbeyan. This dacoit was demanding key from him. The. informant out of fear gave key to him which he passed on to one of his associates asking him to open the lock. That dacoit tried to open the lock but he could not succeed. The informant gave description of this dacoit also in his fardbeyan. Then the dacoit who held pistol in his hand asked the informant opened the lock of the door. The dacoits entered in that room but they did not find any article to take. The said dacoit then asked the informant to come along with him in the courtyard and caught the hand of the informant to take him to courtyard. He also gave description of the third dacoit in his fardbeyan. Some other dacoits numbering about 5 to 7 took their position around the door of the courtyard. One dacoit struck the informants head from behind by lathi but when the informant delayed to open the door of habeli thereafter all the dacoits entered in the courtyard of the informants house. The dacoits got opened one wooden box and looted away all the contents. The other dacoils also entered into different rooms and looted away properly. The dacoils bolted the informant in one of the rooms. They also boiled the informants son, namely ganesh Prasad Singh in his room. The dacoits got opened one wooden box and looted away all the contents. The other dacoils also entered into different rooms and looted away properly. The dacoils bolted the informant in one of the rooms. They also boiled the informants son, namely ganesh Prasad Singh in his room. In the eastern room of the house, the informants elder son, namely Chandrika prasad Singh was sleeping with his wife and two children. The dacoits broke open the door of that room and shot dead Chandrika Prasad Singh. After some time Chandrika Prasad Singh died. The dacoits also looted away property from the room of the deceased chandrika Prasad Singh, while retreating some dacoit "uttered the following words "chandra Shekhar Babu Ka Kam samapt Ho Gaya. " All the dacoits fled away towards west through railway line situate towards many of the informants house. On hulla many villagers collected at the place of occurrence and saw the dacoils fleeing away and they also claimed to ideniify them by face. The informant and his family members also claimed to identify the dacoits. The dacoits looted away property werth Rs.20,654/- as per list appended with the fardbeyan. Soon after the occurrence the police Officer of Bibhutipur P. S. rushed lo the place of occurrence. Sub-Inspector, janardan Prasad Yadav recorded fardbeyan of the informant at his house on 5.11.1980 at 2.30 hours vide Ext.5. 4. On the basis of the said fardbeyan a formal first informalion reporl was drawn case was registered and the invesligation was taken up, sub-sequently after submission of the charge-sheet, case was tried by the Sessions court with the result stated above. Hence this appeal. 5. The appellants denied the allegation and pleaded that they have been falsely implicated in this case. 6. Learned counsel appearing on behalf of he appellanis has submitted that the first informalion reporl was lodged against unknown persons. Later on the appellant were identified in the t. I. Parade. It has been further sub-mitted that the appellanis were shown to the witnesses before holding the T. I. Parade; moreover there is only one identification against appellant, Rajendra Paswan. 7. The prosecution has examined altogether 12 witnesses to prove its case including the informant, Saryug Singh (P. W.10 ). He has narrated the story on the factum of dacoity. It has been further sub-mitted that the appellanis were shown to the witnesses before holding the T. I. Parade; moreover there is only one identification against appellant, Rajendra Paswan. 7. The prosecution has examined altogether 12 witnesses to prove its case including the informant, Saryug Singh (P. W.10 ). He has narrated the story on the factum of dacoity. He has stated that while he was sleeping on his Darwaja at about 11.30 P. M. he was awaken by some dacoits and when he woke up he saw a person armed with pistol and another flashing torch light. He gave description of these two persons in detail. He has further stated that they asked key from them and another dacoits tried to open the door but the door could not be opened and then he opened the door on their instruction. Later on the dacoits went towards the courtyard and they also broke open the door of a room in which his elder son was sleeping. They killed his elder son and looted the article from the room. They also stated that work of Chandra shekhar Babu is done. They later looted articles, of the house worth rs.25,000/-. He also stated that he identified the dacoits in the light of the torch. He further stated that the police came to his house in that night and his statement was recorded on the same night. He has also stated that he identified these two appellants in Samastipur jail in T. I. Parade. However on cross-examination he has denied the suggestion that the Sub Inspector of police had come to his house with these two appellants in the morning before getting his statement recorded. He has denied that he has given wrong statement and wrongly identified these appellants. He has also stated that he does not remember how many times the Sub-Inspector of Police has visited his house. 8. Another witness, Ganesh Prasad singh (P. W.9), son of the informant on the point of dacoity has also supported the narration of the informant (P. W.10 ). He has also stated that on hulla he woke up and when he came out of his room in the courtyard he saw the dacoits breaking the room of his elder brother and heard the sound of firing which killed his brother. He has also stated that on hulla he woke up and when he came out of his room in the courtyard he saw the dacoits breaking the room of his elder brother and heard the sound of firing which killed his brother. He has stated that he identified some dacoits in the torch light flashed by the dacoits the appellants also stated that he identified the appellant in T. I. Parade. He has also staled that after dacoity many villagers were assembled in his house. He has also supported that Sub-Inspector of Police came in that night and recorded his statement. However in his cross-examination he had denied the suggestion that before lodging the first information report Dafadar, Suraj Narain Thakur (P. W. I) other police personnel had come to his house along with these appellants and thereafter first information report was lodged. 9. Suraj Narain Thakur (P. W.1) in his cross-examinations slated that he alongwith other police officials look these appellants to the house of the informant before the statement of he witnesses and the informant, Kapildeo prasad Yadav (P. W.2) a police personnel posted at Bibhulipur police station under whose jurisdiction the occurrence took place has stated that he alongwith police party went to Angarghat in search of accused persons. They arrested accused persons alongwith these appellants. 10. Chandra Kishore Singh (P. W.3)Judicial Magistrate, who held the T. I. Parade has stated that the informant (P. W.10) has identified appellant Umesh yadav and P. W.9 has identified both the appellants. In his cross-examination he has staled that the police has broughl the witnesses before him for T. I. Parade. 11. Janardan Prasad Yadav (P. W.12) is the investigating officer of this case. He has also supported the case of the prosecution. In his cross-examinalion he has denied the suggestion made on behalf of the defence that he had broughl the appellants to the house of the informant before recording the statement of the informani. 12. P. W.8, Dr. P. C. Jain, is a medical officer who held post-mortem examination on the dead body of Chandrika prasad Singh and also found injuries on his body. 13. P. W.4,5,6 and 11 are formal witnesses. 14. Defence has also examined two witnesses, namely Sheo Ram Rai (D. W.1) and Baso Paswan (D. W.2 ). 12. P. W.8, Dr. P. C. Jain, is a medical officer who held post-mortem examination on the dead body of Chandrika prasad Singh and also found injuries on his body. 13. P. W.4,5,6 and 11 are formal witnesses. 14. Defence has also examined two witnesses, namely Sheo Ram Rai (D. W.1) and Baso Paswan (D. W.2 ). D. W.1 has stated that appellant, rajendra Paswan, was taken from his house by Sub-Inspector of Police whereas D. W.2 has stated that appellant, rajendra Paswan was teaching the children of the Investigating Officer, janardan Prasad Yadav and since he demanded remuneration from him he was falsely implicated in this case out of grudge and annoyance. 15. From the discussions made above the factum of dacoity has been proved but so far as involvement of these two appellants are concerned it is admitted that the appellants were not named in the first information report and they were arrested on suspicion. It has also been stated by P. W.1, Dafadar, suraj Narain Thakur that these appellants were taken to the house of informant and were shown to the informant (P. W.10) and his son P. W.9. 16. From perusal of evidence of the witnesses it appears that the appellants were shown to the witness before holding the T. I. Parade. P. W.3, who is Judicial magistrate, who conducted lest Identification Parade has admitted in his cross-examination that witness were produced by the police officer for the purposes of holding Test Identification parade. P. W.10 is one of the identifying witnesses who has admitted that on date the lest Identification Parade was held. Investigating Officer had gone to samastipur and Test Identification parade was held in jail at Samastipur. Thus it creates doubt about the veracity and truthfulness of the assertion made by P. Ws.9 and 10 and 12 and also about the conduction of valid and legal T. I. Parade especially where it was stated by the Judicial Magistrate, Chandra kishore Singh (P. W.3) who held the T. I. Parade that the witnesses were brought to him by the police officials just prior to T. I. Parade. 17. The evidence of P. W.1 on the point of identification of appellants even before recording of fardbeyan is evidently proved and make the prosecution story very weak. 18. 17. The evidence of P. W.1 on the point of identification of appellants even before recording of fardbeyan is evidently proved and make the prosecution story very weak. 18. In the light of discussions made above I am of the view that the prosecution could not prove its case beyond reasonable doubts rather there are contradictions in the evidence of the important witnesses. 19. For the foregoing reasons I hold that the prosecution has not establish the charges against the appellants behind reasonable doubts as such the appellants are entitled to be given benefit of doubt and the trial court was not justified in convicting them. 20. In the result, these appeals are allowed conviction and sentence of the appellants are set aside, they are acquitted of the charge and discharged from the liability of bail bonds. B. N. Agrawal J.-I agree to the order proposed but I intend to give my reasons for acquitting the appellant in both the appeals. 21. The factum of dacoity in the present case has not been disputed and appellant in these two appeals have not been named in the First Information report. Evidence against them is their identification in Test Identification parade. Appellant Rajendra Paswan is said to have been identified by P. W.9 only whereas appellant Umesh Yadav by p. Ws.9 and 10. Question arises as to whether identification of these appellants in lest Identification Parade can be relied upon or not. 22. It is well settled that identification of an accused in lest Identification parade is not substantive piece of evidence and substantive piece of evidence against accused is identification in Court. But as a rule of caution, generally court does not place reliance upon identification of an accused in court unless the same is supported by identification of accused in Test Identification Parade. It is heedless to say that it is really a rule of caution and not rule of law to convict an accused on the basis of his identification Parade. 23. In this case submission has been made that immediately on the next date of occurrence these two appellants were arrested and thereafter they were taken to the house of informant and identifying witnesses were present and there they were shown to identifying witnesses. 23. In this case submission has been made that immediately on the next date of occurrence these two appellants were arrested and thereafter they were taken to the house of informant and identifying witnesses were present and there they were shown to identifying witnesses. The occurrence of the present case is said to have taken place on 4/5th November, 1980 and these two appellants were apprehended on 5th november, 1980, in the morning and taken to the house of the informant and thereafter Test Identification Parade was held on 24.11.1980. 24. P. W.1, who was one of the persons who apprehended the accused persons, has admitted in his cross-examination that after being arrested these accused persons were taken to that house of informant where the informant and other identifying witnesses were present. P. W.3, who is Judicial magistrate who conducted lest Identification Parade has admitted in his cross-examination that witnesses were produced by the police officer for the purpose of holding Test Identification parade. P. W.10 is one of the identifying witnesses who has admitted that on the date the test identification Parade was held Investigating officer had gone to samastipur and lest Identification parade was held in jail at Samastipur. 25. From these facts it appears that these two appellants might have been shown to the identifying witnesses on 5.11.1980 at the house of the informant. It is well settled that if the accused person is shown to the identifying witness before holding Test Identification parade, the so-called identification in test Identification Parade becomes farce and meaningless and therefore, the identification Parade becomes vitiated. If identification in Test Identification parade has to be discarded then there remains the substantive evidence of identification in court on the basis of which generally a person cannot be convicted. I do not find this case to be an exceptional one in which on the basis of identification of the accused in court alone the appellants can be convicted. Therefore, in agreement with My Lord, i hold that the trial court was not justified in convicting the appellants of these two appeals. Appeals Allowed.