M. C. AGARWAL, J. This appeal by seven persons, namely, Molhar, Ram Dia, Inder Singh, Kurdi, Mir Hasan, Birbal and Bulli is directed against a judgment and order dated 23-8-1980 passed by the Addi tional District & Sessions Judge, Saharan-pur in Sessions Trial Nos. 353 of 1975, 353-B of 1975,354 of 1975 and 355 of 1975 all of which were consolidated and dis posed of by the judgment under appeal and by which Birbal appellant was convicted for an offence under Section 412, I. P. C. and sentenced to undergo rigorous imprison ment for a period of four years. The others have been convicted of an offence under Section 397, I. P. C. and sentenced to under go rigorous imprisonment for a period of seven years each. 2. During the pendency of this ap peal, appellant Inder Singh has died. The other accused also did not appear and their bail was cancelled. Accused Molhar, Ram Dia and Bulli alias Boolchand were ar rested and brought before this Court on 26-3-1998. Sri S. L. Kesharwani, Advocate appeared for Molhar and Birbal appellants. Ram Dia and Bulli appellants were unrepresented and expressed their in ability to engage a Counsel. Sri S. L. Kesharwani, Advocate was, therefore, ap pointed Amicus Curiae who assisted the Court on behalf of Ram Dia and Bulli accused. Sri G. S. Hajela, Advocate ap peared on behalf of Mir Hasan appellant and Kurdi accused remained unrepresented. 3. I have heard the learned Counsel named above on behalf of the appellants and the learned Additional Government Advocateon behalf of the State. 4. The prosecution story briefly stated is that in the night between the 11th and 12th of July, 1975 at about 1. 00 a. m. a gang of about 10-12 dacoits committed dacoily at the house of Fakira in village Randor P. S. Behai district Saharanpur. The inmates of the house including the head of the family Sri Pitamber Singh, his son Fakira Singh, grand sons Sher Singh and Ajmer Singh and ladies Madhowati, Saroj Bala etc, were sleeping at various places and there was light of two lanterns in the two verandahs. In addition two lanterns were burning in the portion where the ladies resided. The clacoiis trespassed into the house. They tied down Pitamber Singh to a cot and started loot ing. They took Ajmer Singh in their cus tody and took him to the roof. In addition two lanterns were burning in the portion where the ladies resided. The clacoiis trespassed into the house. They tied down Pitamber Singh to a cot and started loot ing. They took Ajmer Singh in their cus tody and took him to the roof. They were threatening that they would kill him if the valuables were not handed over. The in mates of the house raised an alarm that attracted several villagers. One Satish Kumar was alleged to have brought his gun and fired shots from the roof of the house of Ravinder Singh while Ravinder Singh is alleged to have set fire to a heap of straw lying outside the house. that too created sufficient light. Three of the dacoits had guns, one had & Bhala and had remained at the spot for about one hour. They carried about Rs. 70,000 in cash along with a large amount of jewellery, silver coins etc. They also carried away a double barrel licenced gun belonging to Fakira Singh. The various persons put up for trial were ar rested on various dates. One Sheo Singh who died during the trial was arrested along with Molhar, Nathi etc. in the night between 28th/29th July, 1975. According to the prosecution story the double barrel gun looted from the house of Fakira Singh and belonging to the later was recovered from the possession of Sheo Singh. Later the residential house of Sheo Singh is said to have been raided on 30-7-1975 where his brother Birbal, the present appellant, is alleged to have taken out a bundle from a wall from which 11 silver ornaments, 11 gold ornaments, 105 silver coinsofrs. 1. 00 each, silver coins of eight annas and 11 silver coins of four annas were recovered. The accused as well as the property aforesaid having been identified by the witnesses at test identification parade. They were put up for trial. 5. At the trial, a large number of witnesses were examined. In addition, af fidavits of large number of formal wit nesses were filed Mehar Singh son of Fakira Singh P. W. 9, Balraj Singh P. W. 10, Rajpal Singh P. W. 11, Gyan Singh P. W. 12 and Saroj Bala P. W. 23, are the witnesses who were examined to establish the factum of the dacoity and the identity of the daeoits. Fakira Singh the first informant of this case was also examined as P. W. 6 but he died before ever his examination-in-chief was complete. As regards the recovery of the goods mentioned above, it was sought to be proved by producing Jhamman Singh, who at the relevant time was Sta tion Officer of Police Station Gangoh as P. W. 13 and Harish Chandra, Dhan Pal and Narain Singh as P. Ws. 14,15 and 16. It may be mentioned here that the public wit nesses, namely, Harish Chandra, Dhan Pal and Narain Singh did not support the prosecution case and stated that no recovery was made in their presence and that their signatures etc. were obtained at the police station. They were treated as hostile by the prosecution. Thus, as regards Birbal appellant who has been convicted for an offence under Section 412, I. P. C. , there remains the single tes timony of Jhamman Singh P. W. 13. He merely stated that he along with the other policemen and public witnesses reached the house of Sheo Singh where accused Birbal was available. He was questioned about the dacoity and taken into custody and them he i. e. Birbal took out the potli (bundle) containing the aforesaid orna ments etc. which had been concealed in a wall. Jhamman Singh does not state what was the statement made by Birbal that led to the recovery of the said articles. Thus, taking the statement of Jhamman Singh at its best what it could establish was merely that Birbal knew where the said articles were kept and the statement does not es tablish that Birbal was in possession of those articles or that he knew the same to be stolen property. Thus, even without going into the credibility of the evidence of Jhamman Singh the same did not estab lish the charge under Section 412, I. P. C. against Birbal accused. 6. The statement of Birbal appellant that was recorded under Section 313, Cr. P. C. shows that he was a young boy of about 25 years of age. That means at the time of recovery he was just about 20 years of age. It appears that he was younger to Sheo Singh who was his brother. In other words. Birbal was not a person whose participation in the dacoity could be ruled out in view of the alleged recovery. That means at the time of recovery he was just about 20 years of age. It appears that he was younger to Sheo Singh who was his brother. In other words. Birbal was not a person whose participation in the dacoity could be ruled out in view of the alleged recovery. Illustration (a) of Section 114 of the Evidence Act slates that the Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them 10 he stolen, unless he can account for his pos session. Therefore, if the investigation agency was of the view that Birbal was in possession of the property alleged to have been recovered from him, the law provided that he could be presumed to have par ticipated in the dacoity. Even otherwise at the investigation stage if there was recovery it was natural that the Birbal should have been suspected of participat ing in the dacoily and should have been put up for test identification. However, Birbal appellant was not put up for test identifica tion and no explanation has been given during the trial why this was not done. The omission to put Birbal for test identifica tion shows that in fact he has been impli cated simply because he happened to be the brother of another accused Sheo Singh. Therefore, the charge against Bir bal was not made out and his conviction cannot sustained. 7. As regards the other accused, the evidence, as stated above, is of identifica tion only. As many as nine accused, namely Kurdi, Sheo Singh, Inder Singh, Mir Hasan, Noor Mohammed, Nathi, Molhar, Bulli and Ram Dia were put up for test identification and 12 witnesses, namely, Fakira, Sher Singh, Mehar Singh, Satish Kumar, Mam Chandra, Gyan Singh, Madho Wali, Saroj Bala, Pitafnber Singh, Ajmer Singh, Ravinder Singh, Balraj Singh and Rajpal Singh were produced at the test identification parade to identify them. Out of them only six persons, name ly, Fakira Singh P. W. 6, Mehar Singh P. W. 9, Balraj Singh P. W. 10, Rajpal Singh P. W 11, Gyan Singh P. W. 12 and Saroj Bala P. W. 23 were produced at the trial. As stated above. Fakira Singh died before his examination-in-chief could be concluded. The learned Sessions Judge has believed their evidence and found the appellants guilty. 8. As stated above. Fakira Singh died before his examination-in-chief could be concluded. The learned Sessions Judge has believed their evidence and found the appellants guilty. 8. Learned Counsel for the appellant contended that the evidence is unreliable and the evidence of the witnesses not show that they had any good opportunity to mark feature of the dacoits so as to able to identify them. Analysis of the result of test identification, which was not denied by the learned Sessions Judge would show that the performance of the witnesses at the test identification was too good to be believed and for which there should have been special reasons brought out at the trial. As stated above, nine persons were put up for test identification. Out of them eight, namely, Kurdi, Inder Singh, Mir Hasan, Noor Mohammad, Sheo Singh, Nathi, Molhar and Bulli were identified by Mehar Singh P. W. 9. Rajpal Singh P. W. 11 also identified eight persons. Balraj Singh P. W. 10 identified seven persons. Then if we see how many witnesses examined each accused we have the result startiling. Out of 13 persons Kurdi accused was correctly identified by 9 persons, Sheo Singh by 10 persons, Inder Singh by 10 persons, Mol har by 8 persons and Nathi by as many as 12 persons. The house of Fakira Singh, who, as the evidence shows was a very affluent person was a big one and the dacoits were operating at various place. Some of the dacoits were on the roof holding Ajmer Singh while the others were standing guard at some other place not identified by the witnesses and the rest were committing dacoity. Oneof the persons has beenstated to be standing in the Court-yard where the dacoits were bringing looted property. Out of the five witnesses of fact not even one has assigned any specific role to any of the accused. Neither in the F. I. R. nor during their statement under Section 161, Cr. PC. the witnesses have given any such description as may be helpful in finding out the culprits. It has come in evidence that Mir Hasan accused has blue eyes while Bulli had pox mark on his face while Mol har had a long linear mark near his lip. No such features were not revealed during investigation. PC. the witnesses have given any such description as may be helpful in finding out the culprits. It has come in evidence that Mir Hasan accused has blue eyes while Bulli had pox mark on his face while Mol har had a long linear mark near his lip. No such features were not revealed during investigation. It has come in evidence that Ajmer Singh and inmates of the house was held hostage by the dacoits and taken to the roof. It has not been stated in evidence who was the particular person amongst the accused who was at the roof and was hold ing Ajmer Singh. Ajmer Singh was not examined at the trial. Then as slated above there was one person who has been alleged to be standing in the Court-yard where the looted property was being collected. No one states who amongst the accused at the trial was that person. 9. Evidence on record shows that the dacoits were heavily armed. It appears that they knew that there was a gun in the house of which was to be looted and there were other guns in the village. Investigating Of ficer Dhanpal Singh P. W 17 has stated that the first informant Fakira Singh gave him as many as 42 empty cartridges that had been collected from the spot. This shows the extent of gun fire resorted by the dacoits to deter the villagers. It is un natural that in the face of such heavy fire there would be any witness in the neigh bourhood to be able to identify the dacoits. It has been stated that one Satish Kumar came with gun and fired from the roof of the house of Ravinder Singh. The said Satish Kumar who had identified as many as seven accused at the test identification parade was not examined at the trial. The evidence does not suggest that the shots fired by Satish Kumar resulted in any casualty or injury on the side of dacoits. The omission of Saiish Kumar to hil any of the dacoit shows that he was nowhere near the scene to be able to identify the dacoits. 10. It has been stated that the wit nesses had collected in the house of Maldei from where they saw the daeoits through holes in the eastern wall of the house. The omission of Saiish Kumar to hil any of the dacoit shows that he was nowhere near the scene to be able to identify the dacoits. 10. It has been stated that the wit nesses had collected in the house of Maldei from where they saw the daeoits through holes in the eastern wall of the house. In the site plan no such holes have been shown by the Investigating Officer accord ing to whom the witnesses saw the dacoits through the doors of the house. So far as the holes in the wall are concerned they would be (sic) towards east and through the holes one would not be able to see the dacoits who were either on the roof or inside the house of Fakira Singh. 11. It has then be stated that a heap of straw was lying at a place marked f in the site plan which was set a fire by Ravinder Singh. Ravinder Singh too has not been examined. It has been explained who was the owner of the said straw and why it should have been lying there. Further, the heavy gun fire (sic) to by the dacoits negatives the possibilityofanyonc being able to reach the said place to set fire to the heap. Lastly the resultant fair would be so bright that it would prevent the persons alleged to be in the house of Maldei to see the dacoits so clearly as to mark their features. 12. For the above reasons, I am of the view that the conclusion arrived at by the learned Sessions Judge holding the ac cused guilty of the offence of dacoity was not sustainable on a critical examination of the evidence led at the trial. It is not enough that the witnesses identified the accused at the test identification and then in the Court. What has to be seen is whether their evidence is natural and con vincing. In other words whether they had sufficient opportunity to mark the features of the offender and whether they assisted the prosecution during the investigation by promptly disclosing those features so that the investigating agency may lay hands on the probable suspects. In this case the evidence of test identification is too good to be natural and convincing and, there fore, was liable to be rejected. 13. In the result, the appeal is al lowed. In this case the evidence of test identification is too good to be natural and convincing and, there fore, was liable to be rejected. 13. In the result, the appeal is al lowed. The judgment and order dated 23-8-1980 is set aside in so far as the appel lants are concerned, and they are ac quitted. So far as the case property is con cerned the same shall be dealt with as ordered by the Court below. Appellants Molhar, Ram Dia and Bulli who are in Jail at Saharanpur shall be released forthwith unless required to be detained in any other case. Before parting I must put on record my appreciation for the hard work done by Sri S. L. Kesharwani, Advocate who as sisted the Court. He shall be paid his fee as per rules for representing Ram Dia and Bulli appellants as Amicus Curiae. Appeal allowed. .