Judgment M.L.Visa, J. 1. Both these appeals are being disposed of by this common judgment as both the appeals arise out of the same judgment and order dated 4.7.1989 passed by the 1st Assistant Sessions Judge, Khagaria, in Sessions Case, No. 508 of 1985, convicting and sentencing the appellants to undergo R.I. for 10 years each under Sec. 395 of the Indian Penal Code. 2. When these appeals were called for hearing, nobody appeared on behalf of the appellants in Cr. Appeal No. 297 of 1989. In view of the decision of the Supreme Court in the case of Bani Singh V/s. State of U.P. -- , this appeal is also being disposed of on merit after considering the materials on record and hearing the learned Counsel for the State. 3. The case of the prosecution, in short, is that on 24.12.84 the informant Girish Shankar Pd. Singh (P.W. 4) was sleeping in his dalan. At about 12.15 p.m. he woke up on hearing the sound of barking of dogs and the then saw 4-5 persons standing at the darwaja of the dalan who were flashing torchlight, out of which one person chided the informant and asked him to keep quiet otherwise he would be killed. The informant then knew that those persons were dacoits. Two of the dacoits remained standing at the darwaja of his dalan whereas others went towards the courtyard of his house. About 5-6 minutes thereafter, the informant heard the sound of firing from the house of his brother Awadhesh Pd. Singh (P.W. 3). About 10 minutes thereafter, he saw 10-12 dacoits coming to the darwaja of his dalan by dragging a man and thereafter going towards south west direction. When the informant came out from his dalan, he found his nephew Dilip Pd. Singh (P.W. 1) and his son Bimal Pd. Singh (P.W. 2) raising hulla that the dacoits after assaulting his brother Awadhesh Pd. Singh (P.W. 3) were dragging him. He also found blood in sufficient quantity fallen in the angan. The wife of Awadesh Prasad Singh (not examined) told him that the dacoits after entering the house had taken away the articles and her husband had fired at one of the dacoits who received injuries but her husband also received injuries when one of the dacoits fired and the dacoits had taken away her husband. The wife of Awadesh Prasad Singh (not examined) told him that the dacoits after entering the house had taken away the articles and her husband had fired at one of the dacoits who received injuries but her husband also received injuries when one of the dacoits fired and the dacoits had taken away her husband. Thereafter, when the informant came out from the house of Awadhesh Pd. Singh, he found that one man wrapping a blanket was coming slowly towards him. When that man reached near the informant he found that man was his brother Awadhesh Pd. Singh who had received bleeding injuries on his neck. The informant, arranged a rickshaw and sent Awadhesh Pd Singh to hospital for treatment. The wife of Awadhesh Pd. Singh further told the informant that dacoits had taken away a double-barrel gun from the house. Further case of the prosecution is that when Awadhesh Pd. Singh was being sent to hospital, he was not in a condition to speak because of injuries received on his neck. Besides, the double barrel gun, the dacoits took away two boxes from the house of Awadhesh Pd. Singh. The fardbeyan (Ext. 1) of the informant was recorded by the police on 15.12.84 at 5 p.m. at his house and a case under Sec. 395 of the Indian Penal Code against unknown was registered. During the course of investigation, co-accused Subodh Rai was put on T.I. parade and he was identified by witnesses. After investigation the police submitted charge-sheet against Prakash Yadav and Satan Yadav (appellants of Cr. Appeal No. 297 of 1989) along with co-accused Subodh Rai. Appellant Pujari Yadav (appellant of Cr. Appeal No. 273 of 1989) and others were shown absconders. Thereafter, appellant Pujari Yadav surrendered before the Court below and he was put on T.I. parade and he was identified by Dilip Pd Singh (P.W. 1) and Bimal Pd Singh (P.W. 2) and supplementary charge-sheet was submitted against him also. After cognizance the case was committed to the Court of Session and the appellants along with co-accused Subodh Rai and Umesh Prasad Yadav who was shown absconder in the charge-sheet but who later on surrendered in Court were put on trial. After trial the Court below found the appellants guilty under Sec. 395 of the Indian Penal Code and convicted and sentenced to undergo R.I. for 10 years each. After trial the Court below found the appellants guilty under Sec. 395 of the Indian Penal Code and convicted and sentenced to undergo R.I. for 10 years each. Co-accused Subodh Rai and Umesh Prasad Yadav were not found guilty and accordingly they were acquitted. 4. In order to prove its case, the prosecution has examined 8 witnesses in this case. Girish Shankar Pd Singh alias Gauri Shankar Pd. Singh (P.W. 4) is the informant of this Case. Dilip Pd. Singh (P.W. 1) nephew of the informant, Bimal Pd. Singh (P.W. 2) son of informant and Awadhesh Pd. Singh (P.W. 3) brother of informant are eye-witnesses to the occurrence. Dr. Ram Nand Kumar (P.W. 5) is the doctor who had examined the injured Awadhesh Pd. Singh (P.W. 3). Raghaw Pd. Singh (P.W. 6) is the I.O. of this case who had earlier submitted charge-sheet after completing investigation. Prabhu Nath Jha (P.W. 8) is also the I.O. who had submitted supplementary charge-sheet against the appellant Pujari Yadav who was earlier shown as absconder. Sri K.K. Shrivastava (P.W. 7) is the Judicial Magistrate, who had conducted T.I. parade: 5. Appellant Pujari Yadav is not named in the FIR but during the course of investigation, he was identified by Dilip Pd. Singh (P.W. 1) and Bimal Pd. Singh (P.W. 2) in T.I. parade. Shri K.K. Shrivastava (P.W. 7), the Judicial Magistrate, in his evidence has stated that aforesaid two witnesses identified the appellant Pujari Yadav in T.I. parade conducted on 1.8.85. He has proved the T.I. chart (Ext. 5 series). He has further stated that earlier on four occasions also he got the T.I. parade conducted in this case and on two occasions the witnesses could not identify any suspect and on one occasion the same witnesses, i.e., P.W. 1 and P.W. 2 identified an another man Shobha Prasad Yadav who was not a suspect and on 25.3.85 they identified co-accused Subodh Rai. In their evidence Dilip Pd. Singh (P.W. 1) and Bimal Pd. Singh (P.W. 2) both have stated that they wrongly identified this co-accused who was well known to them before the occurrence. 6. In their evidence Dilip Pd. Singh (P.W. 1) and Bimal Pd. Singh (P.W. 2) both have stated that they wrongly identified this co-accused who was well known to them before the occurrence. 6. Learned Counsel appearing for the appellant Pujari Yadav has submitted that Pujari Yadav surrendered in the Court below on 8.4.85 and he was bailed out on 17.4.85, but he was put on T.I. parade on 1.8.85 meaning thereby that there was inordinate delay in conducting the T.I. parade in this case. It has further been submitted that this appellant filed petition (Ext. A) on 18.7.85 before the Court below that the prosecution witnesses had identified him in Court compound because that was the date fixed in the case and he again on 31.7.85 filed another petitions (Ext. A/a and Ext. A/b) to the same effect and again on 1.8.85 he filed a petition (Ext. A/c) stating therein that although he appeared on 18.7.85 but no T.I. parade was held and it was adjourned to 19.7.85 and even on 19.7.85, it was not conducted, although on that day T.I. parade of another co-accused Subodh Rai who was on bail was conducted but this appellant was deliberately left out and on 31.7.85 when he appeared in Court and filed attendance he was identified to the witnesses by the I.O. Learned Counsel for the appellant Pujari Yadav was submitted that inordinate delay in putting the appellant on T.I. parade and also the complaint of appellant that, before putting him on T.I. parade he was shown to witnesses by I.O. has not been considered by the Court below properly. From the aforesaid facts, I find that witnesses, namely, Dilip Pd. Singh (P.W. 1) and Bimal Pd. Singh (P.W. 2) who are said to have identified appellant Pujari Yadav in T.I. parade on one occasion, identified a person who was not even suspect and on the second occasion they identified co-accused Subodh Rai who, according to their evidence, was known to them from before and about whom they have stated that they identified him wrongly. The conduct of these witnesses in identifying the persons who, according to them, took part in commission of dacoity is an unnatural and it appears that they were acting merely on guesswork and were taking chance. The conduct of these witnesses in identifying the persons who, according to them, took part in commission of dacoity is an unnatural and it appears that they were acting merely on guesswork and were taking chance. It appears that either they had not seen any dacoit or they were not in a position at the time of T.I. parade to identify dacoits who participated in dacoity. For this reason, once they identified a man who was not even suspect and on another occasion they identified a man who according to them, was well known to them before the occurrence but was wrongly identified by them who had not taken part in the commission of dacoity as per their own evidence. The identification of appellant Pujari Yadav by such witnesses cannot be given any credit and I, therefore, find that the conviction of appellant Pujari Yadav on the basis of identification by these witnesses cannot, be sustained. 7. About the case of Prakash Yadav and Satan Yadav, who are appellants in Cr. Appeal No. 297 of 1989, I find that they are not named in the F.I.R. They were not put on T.I. parade also. Their names figured in the statements of P.W. 1, 2 and 3 recorded during the course of investigation. P.Ws. 1 and 2 who both are eye-witnesses to the dacoity, in their evidence, have stated that they identified both these appellants at the time of occurrence. Dilip Pd. Singh (P.W. 1) has gone to the extent of deposing that he saw the licensed gun of his father in the hands of appellant Satan Yadav and appellant Prakash Yadav was also carrying a rifle. The same has been deposed by Bimal Pd. Singh (P.W. 2). It does not come to the reason that when these two appellants were identified by P.W. 1 and P.W. 2 why their names have not appeared in the fardbeyan of informant who was also present at the time of occurrence and who is none-else but the father of P.W. 2 and uncle of P.W. 1. Awadhesh Pd. Singh (P.W. 3) in his evidence has stated that he had also identified appellants Prakash Yadav and Satan Yadav at the time of occurrence and it was appellant Prakash Yadav who had fired at him from his rifle causing injury on his neck. Awadhesh Pd. Singh (P.W. 3) in his evidence has stated that he had also identified appellants Prakash Yadav and Satan Yadav at the time of occurrence and it was appellant Prakash Yadav who had fired at him from his rifle causing injury on his neck. He has further stated that because of injury received by him on his neck he was not in a position to speak but he then wrote the names of appellants Prakash Yadav and Satan Yadav who were identified by him on a chit of paper and handed over the same to his son Dilip Pd. Singh (P.W. 1). This has been admitted by P.W. 1 himself in his evidence where he has stated that his father had disclosed the names of appellants Prakash Yadav and Satan Yadav by writing on a paper and further wrote that it was appellant Prakash Yadav who had fired at him. Prosecution has not brought on record this paper said to be written by injured Awadhesh Pd. Singh (P.W. 3). Notwithstanding the non-production of this paper, it does not seem believable that appellants Prakash Yadav and Satan Yadav were identified by P.W. 1 and P.W. 2 and P.W. 3 immediately after the occurrence had written their names on a chit of paper disclosing that they were amongst the dacoits. Had it been so the names of these two appellants must have figured in the fardbeyan of informant because, according to the case of prosecution, the informant was also present at the place of occurrence along with the aforesaid witnesses and he had full opportunity of having talks with P.W. 1 and P.W. 2 who are, as stated above, his nephew and son respectively. So I find that the identification of appellants Prakash Yadav and Satan Yadav for the first time in Court by witnesses, namely, P.W. 1 and P.W. 2, does not cut much ice and it cannot be relied upon fro sustaining the conviction of these two appellants. 8. Considering the entire materials on record, I find that the prosecution has not been able to prove its case against the appellants in both the appeals beyond all reasonable doubts. 9. In the result, both the appeals are allowed and the judgment and order of conviction and sentence passed against the appellants by the Court below, is set aside. 8. Considering the entire materials on record, I find that the prosecution has not been able to prove its case against the appellants in both the appeals beyond all reasonable doubts. 9. In the result, both the appeals are allowed and the judgment and order of conviction and sentence passed against the appellants by the Court below, is set aside. All the three appellants, who are on bail, are discharged from the liability of their bail-bonds.