U. S. TRIPATHI, J. The above four ap peals have been preferred by respective appellants against the judgment and order dated 30- 9-1980 passed by Sri S. K. Ag-nihortri, the then 6th, Additional Sessions Judge, Aligarh in Session Trial No. 532 of 1979 convicting the appellants under Sec tion 396 I. P. C. and sentencing them to imprisonment for life. 2. All the appeals arise out of same judgment and common questions of fact and law are involved in all the four appeals and, therefore, these appeals are taken up together for decision by a common judg ment. 3. The prosecution story, briefly stated, was that Heera Lal deceased, Aidal Singh deceased and Bhagwat Singh (P. W. 2) were real brother and residents of vil lage Ratanpur, P. S. Sikandararau, District Aligarh. Appellants Harpal and Sukhpal were real brothers and first cousins of Bhagwant Singh (P. W. 2), Heera Lal and Aidal Singh deceased. Appellant Ajanti resident of Sikandarpur, P. S. Akbarabad was allegedly Sarhu of appellant Sukhpal and sister of appellant Munna Giri was married in the village of Bhagwant Singh (P. W. 2 ). Chhote Giri and Jamuna Giri of the said village had executed sale deed on 13-7-1979 in favour of appellant Sukhpal regarding Abadi land. Subsequently, on 20-7- 1979 a sale deed of the same land was executed by Chanda Giri (P. W. 3) in favour of Bhagwant Singh (P. W. 2), Heera Lal deceased and Aidal Singh deceased. The execution of above sale deeds gave rise to criminal litigation and proceedings under Sections 107/116 and 145 Cr. P. C. were initiated between Bhag want Singh (P. W. 2), Heera Lal deceased, Aidal Singh, Chandan Giri (P. W. 3) on one side and appellant Sukhpal and their ven dors on the other side and the vendees on each side were asserting their rights over said Abadi land. 4. Bhagwant Singh (P. W. 2) had his house on the south western corner of the village. His house faced towards west, towards Rasta. In front of his house he had his Sahan (Ghera ). 5. On the evening of 1-9-1979 at about 7. 45 p. m. Bhagwant Singh (P. W. 2) was sitting in his Sahan (Chauk) along with his elder brother Heera Lal deceased, Chhabi Nath Singh, Kundan Singh, Tikam Singh and others. A lighted lantern was placed there. In front of his house he had his Sahan (Ghera ). 5. On the evening of 1-9-1979 at about 7. 45 p. m. Bhagwant Singh (P. W. 2) was sitting in his Sahan (Chauk) along with his elder brother Heera Lal deceased, Chhabi Nath Singh, Kundan Singh, Tikam Singh and others. A lighted lantern was placed there. Another lighted lantern was inside the house wherein his younger brother Aidal Singh deceased, his wife Smt. Laungsree (P. W. 5) and other ladies and children were busy in preparing and taking their meals. Chandan Giri (P. W. 3) was passing through the Sahan of Bhag want Singh (P. W. 2), after performing pooja in the temple and he was called by Chhabi Nath, Samadhi of Heera Lal deceased and he also joined them. At about 7. 45 p. m. 15-20 dacoits armed with country made pistols, lathis and spears came to the Ghera of Bhagwant Singh (P. W. 2) and started firing on the persons sitting there. The shots hit Heera Lal deceased and Chandan Giri (P. W. 3 ). Thereafter, the dacoits entered into the house of Bhagwant Singh (P. W. 2) and shot at Aidal Singh deceased and caused in juries on Smt. Laungsree (P. W. 5 ). They enquired about house hold properties and while leaving the spot removed 12 bore licensed gun of Aidal Singh deceased. In light of lantern and moon light appellants Sukhpal, Harpal, Ajanti and Munna Giri were recognised by the witnesses present in the Ghera and inside the house. The other dacoits were recognised by their faces. 6. Bhagwant Singh (P. W. 2) along with other villagers was taking the injured per sons Heera Lal, Aidal, Smt. Laungsree (P. W. 5) and Chandan Giri (P. W. 3) to hospital but in the way entrusting injured persons to others to take them to hospital he went to P. S. Sikandararau where he lodged a written report (Ext. Ka. 5) at 9. 15 p. m. Chik F. I. R. (Ext. Ka-1) was prepared by Head Constable Shiv Naram Singh (P. W. 1), who made an endorsement at G. D. (Ext. Ka. 2) and registered a case under Sections 395/397 I. P. C. against the appellants and other unknown dacoits. The injured Heera Lal, Aidai Singh, Smt. Laungsree (P. W. 5) and Chandan Giri (P. W. 3) were medically examined between 9. 45 and 11. Ka. 2) and registered a case under Sections 395/397 I. P. C. against the appellants and other unknown dacoits. The injured Heera Lal, Aidai Singh, Smt. Laungsree (P. W. 5) and Chandan Giri (P. W. 3) were medically examined between 9. 45 and 11. 00 p. m. on 1-9-1979 at Primary Health Centre, Sikandararau by Dr. S. K. Jha (P. W. 8) who found following injuries on the persons of respective injured:- Injuries of Heera Lal: 1. Lacerated wound 3. 5 cm x 2. 5 cm x depth not probed on the middle of abdomen just above the umblicus. Advised X-ray. Patients condition was poor, pulse poor and weak, D. P. low. Referred to M. S. Hospital, Aligarh for admission. Nature of injury was kept under observation and it was fresh in duration. Injuries of Aidal Singh: 1. Lacerated wound 4. 25 cm x 1. 5 cm x Depth not probed on the left side of chest 11. 5 cm below left nipple. Advised x-ray. 2. Lacerated wound 2 cm x 1. 5 cm x depth not probed on the right side of chest lower part on the posterior axillary line. Advised x-ray. 3. Multiple abrasion in an area of 16 cm x around injury No. 1. Condition of patient was poor, pulse slow, weak and low in vol. B. P. low, referred to M. S. Hospital, Aligarh. No charring or blackening seen around injury No. 1. Nature and object kept under observation. Injuries were fresh in duration. Injuries of Smt. Laungsree: 1. Contusion 4 cm x 1. 5 cm on the left shoulder. 2. Contusion 3 cm x 1. 5 cm on the right shoulder. 3. Contusion 5 cm x 2 cm on the outer part of right upper arm middle parts. 4. Contusion 6 cm x 2 cm on the right scapular region. 5. Contusion 10 cm x 2 cm on the right side of back 7 cm below lower angle of scapula. 6. Contusion 4 cm x 1 cm on the left side of back. Patients condition was poor, kept under observation, referred to M. S. Hospital, Aligarh. Nature kept under observation. Injuries were caused by hard and blunt object and were fresh in duration. Injuries of Chandan Giri: 1. Laceraed wound 1 cm x. 25 cm x muscle deep on the back of left hand. Advised x-ray. Injury was simple in nature. Patients condition was poor, kept under observation, referred to M. S. Hospital, Aligarh. Nature kept under observation. Injuries were caused by hard and blunt object and were fresh in duration. Injuries of Chandan Giri: 1. Laceraed wound 1 cm x. 25 cm x muscle deep on the back of left hand. Advised x-ray. Injury was simple in nature. Object under observation and fresh in duration. Doctor prepared injury reports (Ext. Ka-8 toka. ll. ). The investigation of the case was taken by Sri Sardul Singh Uppal (P. W. 10) who after interrogating Head Moharrir and some other witnesses at the police sta tion reached place of occurrence. He in spected the place of occurrence and prepared site plan (Ext. Ka. 17 ). Healso took into possession blood stained and simple earth from the spot and prepared recovery memo. Thereafter, he interrogated Bhagwant Singh (P. W. 2), Chandan Giri (P. W. 3) Smt. Laungsree (P. W. 5), Kundai Singh (P. W. 6) and other witnesses. 7. As the condition of Heera Lal and Aidal Singh was serious Sri Ram Autar Saxena (P. W 9) the ten Tahsildar Magistrate, Sikandararau was called at RH. C. for record ing their dying declaration. He recorded dying declaration (Ext. Ka. 15) of Heera Lal at 10. 20 p. m. and that of Aidal Singh (Ext. Ka. 16) at 10. 20 p. m. in the presence of Dr. S. K. Jha (P. W 8) who appended his certifi cate on the above dying declarations. 8. Aidal Singh deceased, while being taken to District Hospital, Aligarh died in the way near Banehari. Inquest of his dead body was conducted and dead body was sent for post-mortem. Autopsy on the dead body of Aidal Singh deceased was conducted on 2-9-1979 at 3. 45 p. m. by Dr. R. A. Singh (P. W. 4), who found following ante-mortem injuries on his person :- 1. One gun shot wound of entry oval in shape 1-1/3" x 3/4" x chest and abdominal cavity deep on left side front of chest. 4-1/2" below the left nipple. No charring, no blackening around the wound. Margins inverted and direction from front to left and back to right. 2. One gun shot wound of entry oval in shape 1-1/3" x 3/4" x chest and abdominal cavity deep on left side front of chest. 4-1/2" below the left nipple. No charring, no blackening around the wound. Margins inverted and direction from front to left and back to right. 2. One gun shot wound of exit 3/4" x 1/2" x chest and abdominal cavity deep on right side of chest lower part in the post axillary line com municating to the injury No. 1 (the entry wound ). Margins everted and irregular. 3. Multiple abrasion in area of 6-1/2" x 3-1/2" around injury No. 1. 4. Abrasion in shape of a triangle 2-1/2" x 1-1/2" just below left scapula. 5. Abrasion 3" x 1/2" just below left but tock. 6. Abrasion l/2"x 1/4", 2-1/2" below injury No. 2. 9. On internal examination 8th, 9th and 10 ribs of left side were found fractured under injury No. 1. Left Pleura punctured and contained 2 ounces partly clotted blood. Peritoneum was punctured and contained 1/2 pint of partly clotted blood. Stomach punctured through and through and contained 3 ounces of food material mixed with blood. Small intestine was punctured. Gall Bladder punctured through and through. In the opinion of the Doctor cause of the death was due to shock and hemorrhage as a result of injury No. 1 and 2. The Doctor prepared post-mortem report (Ext. Ka. 6 ). 10. Heera Lal deceased was admitted in the District Hospital, Aligarh where he died on 9-9-1979 at 6. 00 p. m. Inquest of the dead body was conducted and dead body was sent for post-mortem. The autopsy on the dead body of Heera Lal deceased was conducted on 10-9-1979 at 3 p. m. by Dr. B. N. Gupta (P. W. 7), who found following ante-mortem injuries on his person:- 1. One stitched wound 12 cm. in length, with 6 stitches in the middle of abdomen. Verti cal dimension. On opening of the wound breadth was 1 cm x abdominal cavity deep. 2. One stitched wound 7. 5 cm. in length, oblique direction upper limit of the wound up to injury No. 1 in the middle of the lower limit at a distance of 6 cm from the lower limit of injury No. 1. 7 stitches applied. 3. Punctured wound 1. 5 cm. x 0. 5 cm. 2. One stitched wound 7. 5 cm. in length, oblique direction upper limit of the wound up to injury No. 1 in the middle of the lower limit at a distance of 6 cm from the lower limit of injury No. 1. 7 stitches applied. 3. Punctured wound 1. 5 cm. x 0. 5 cm. x abdominal cavity deep in the right side of ab domen. 7 cm. above the right iliac crest. 4. Punctured wound 1. 5 cm x 1 cm x ab dominal cavity deep in the left side of abdomen over to middle and 8 cm. above left iliac liga ment. 5. Scatter abrasion 5 cm x 1. 5 cm on the lower aspect left elbowjoint. 6. Scatter abrasion 4. 5 cm x 1. 5 cm on the front of left elbowjoint. 7. Scatter abrasion 6 cm x 3 cm in the left side of back of 1/3 lower part of back and 1 cm below the shoulder bone. 8. Scatter abrasion 10 cm x 5 cm in the upper half of left hip joint. 9. Scatter abrasion 1. 5 cm x 0. 5 cm in front of right elbow joint. 10. Scatter abrasion 4 cm x 0. 5 cm in front of rightwrist joint. On internal examination pus was found in the small intestine. Pellets were recovered from abdominal wall. 11. In the opinion of Doctor death was due to peritonitis due to injuries (gun shot injuries ). The Doctor prepared post mortem report (Ext. Ka. 9 ). 12. The case was subsequently altered under Section 396 I. P. C. and the Inves tigating Officer on completion of inves tigation submitted charge sheet (Ext. Ka. 18) against the appellants. 13. All the appellants were charged with offence punishable under Section 396 I. P. C. to which they pleaded not guilty and the defence of appellants Sukhpal and Harpal was that they were falsely impli cated on account of enmity. Appellant Ajanti contended that prosecution wit nesses were not knowing him from before. He claimed identification, but it was not done. Appellant Munna Giri contended that he was falsely implicated on instiga tion of Chandan Giri (P. W. 3) who had enmity with his father. 14. To prove its case the prosecution examined Head Constable Shiv Narain (P. W. 1), Bhagwant Singh (P. W. 2), Chandan Giri (P. W. 3), Dr. He claimed identification, but it was not done. Appellant Munna Giri contended that he was falsely implicated on instiga tion of Chandan Giri (P. W. 3) who had enmity with his father. 14. To prove its case the prosecution examined Head Constable Shiv Narain (P. W. 1), Bhagwant Singh (P. W. 2), Chandan Giri (P. W. 3), Dr. R. A. Singh (P. W. 4), Smt. Laungsree (P. W. 5), Kundant Singh (P. W. 6), Dr. B. N. Gupta (P. W. 7), Dr. S. K. Jha (P. W. 8), Ram Autar Saxena, Tahsildar (P. W. 9) and Sardul Singh Uppal (PW. 10) I. O. Bhagwant Singh (P. W. 2), Chandan Giri (PW. 3), Smt. Laungsree (P. W. 5) and Kundan Singh (P. W. 6) were witnesses of fact while the evidence of remaining wit nesses was formal in nature. The appel lants did not adduce any oral evidence. 15. The learned Additional Sessions Judge on considering the evidence of prosecution held that the appellants had motive to commit the murder of two deceased and there was sufficient light to recognise the appellants. But from the statements of Bhagwant Singh (P. W. 2) and Smt. Laungsree (P. W. 5) it is clear that the offence committed by appellants and their associates technically did not fall under Section 396 I. P. C. as nothing was looted. The circumstances of the case are indica tive of the fact that after having seriously injured Heera Lal and Aidal Singh deceased with fire arms, the offenders thought that their object had been ac complished and so they ran away from the spot and only casually they removed the gun of Aidal Singh and did not try to loot other valuables from the house of the deceased. However, charge under Section 3021. P. C. could not be framed against the accused/applicants, in view of clear aver ments of dacoity made in the F. I. R. and also the evidence in support of it. The prosecution case, however, does not suffer from any weakness for that reason because admittedly, there existed enmity between the accused Sukh Pal and Harpal on one side and the two deceased and Bhagwant Singh (P. W. 2) on the other side in respect of plot No. 287 for which both the parties got the sale deed executed in their favour from different persons, who were claiming to be owners of the said plot. Therefore, he concluded that the prosecution had suc ceeded in establishing its case against the accused/appellants and charge framed against accused was found proved against them beyond any shadow of doubt. With these findings he convicted and sentenced the appellants under Section 396 I. P. C. as mentioned above. 16. Appellant Harpal died during the pendency of appeal in an accident, vide report of Chief Judicial Magistrate, Aligarh dated 4-2-2000. Therefore, the ap peal preferred by appellant Harpal stands abated. 17. We have heard Sri A. D. Giri, learned Senior counsel appearing for ap pellant Munna Giri and Sri Tapal Ghosh, Advocate appearing for appellants Sukhpal and Ajanti and the learned A. G. A. appearing for the respondent and have perused the evidence on record. 18. The learned counsel for the ap pellants contended that the allegations contained in the F. I. R. were that the appel lants along with 10-12 other persons com mitted dacoity in the house of Bhagwant Singh (P. W. 2) in the night of occurrence and some of them committed murder of Heera Lal and Aidal Singh deceased and caused injuries to Chandan Giri (P. W. 3) and Smt. Laungsree (P. W. 5 ). The appel lants were charged with the offence punishable under Section 396 I. P. C. i. e. , dacoity with murder. But the learned Trial Court concluded that the act of appellants and their other associates technically did not fall under Section 396 I. P. C. as it is proved from the evidence on record that no valuable was removed from the house of the deceased and object and appellants and their associates was only to kill the deceased and other male members of their family. Even then the trial Court found itself helpless in convicting the appellants under Section 302 I. P. C. as no charge was framed under such section against them and ultimately he concluded that the prosecution has proved its case beyond all reasonable doubt and accordingly con victed the appellants under Section 396 I. P. C. Therefore, the findings of trial Court is self contradictory and the appellants could not be convicted under Section 396 I. P. C. as the said charge was not proved. Therefore, it is to be considered whether the dacoity had taken place in the house of Bhagwant Singh (P. W. 2) and two deceased Heera Lal and Aidal Singh were murdered during the commission of said dacoity. 19. It is not disputed that Heera Lal and Aidal Singh deceased as well as Chan-dan Giri (P. W. 3) sustained gun shot in juries and Smt. Laungsree (P. W. 5) sus tained blunt object injuries. It is also not disputed that Heera Lal and Aidal Singh deceased died on account of above in juries. The medical evidence of Dr. S. K. Jha (P. W. 8), Dr. R. A. Singh (P. W. 4) and Dr. B. M. Gupta (P. W. 7) proved the in juries of the injured and death of Heera Lal and Aidal Singh on account of injuries on their persons. 20. Bhagwant Singh (P. W. 2) stated that the dacoits took away licensed gun of his brother Aidal Singh and some papers and some small articles. In the F. I. R. it was mentioned that the list of looked articles would be submitted subsequently. But neither any list was ever submitted non-Bhagwant Singh (P W. 2) stated the articles allegedly looted. Chandan Giri (P. W 2) simply stated that the dacoits took away single barrel gun from the house of Heera Lal. Admittedly he had not gone inside the house of Bhagwant Singh (P. W. 2) and he had also not seen any article being carried by the dacoits. Smt. Laungsree (PW. 5) had also stated that dacoits removed a gun and certain small articles. But she could also not given details of articles allegedly looted. Kundan Singh (P. W. 6) stated that he had not seen the occurrence. He was declared hostile by the prosecution. It ap pears that the gun of Aidal Singh deceased was incidentally removed and the object of appellants was not to commit dacoity. smt. Laungsree (P. W. 5) further stated that the dacoits were saying that they would destroy the house of Heera Lal as he would not stop helping Chandan Giri (P. W. 3) and therefore, they would not spare Heera Lal. The above utterances of miscreants as stated by Smt. Laungsree (P. W. 5) clearly indicated that their main object was to murder Heera Lal and not to commit dacoity. The above utterances of miscreants as stated by Smt. Laungsree (P. W. 5) clearly indicated that their main object was to murder Heera Lal and not to commit dacoity. It is also clear from the evidence on record that as many as 15-20 dacoits allegedly committed dacoity, but they did not remove any valuable article except licensed gun of Aidal Singh deceased. Thus, it is clear from the evidence on record that neither the appellants in tended to commit dacoity nor dacoity took place. But all the appellants were charged for the offence of dacoity with murder. The learned trial Court had also concluded that offence punishable under Section 396 I. P. C. could not be proved against the ap pellants, but he further held that the prosecution has established its case beyond all reasonable doubt and accord ingly, convicted the appellants under Sec tion 396 I. P. C. This finding of the trial Court is self contradictory. 21. The learned A. G. A. contended that according to Section 216 Cr. PC. the charge may be amended at any stage of proceeding before the judgment is pronounced and according to Section 464 Cr. PC. no findings, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission, or irregularity in the charge including any misjoinder of char ges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby and that if the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been oc casioned, it may in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately. after the framing of the charge or in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit. after the framing of the charge or in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit. No doubt during trial, after examination of P. W. 9, on 24-7-1980 the prosecution moved an application to frame charges under Section 302 I. P. C. and 395/397 I. P. C. on the ground that the chief intention of accused was not to commit robbery, theft or extortion but to commit murder and it was subsequent to the murder that they removed certain property dishonestly. But the above application was rejected vide order dated 28-7-1980. The said order has become final as no revision was filed against it. During hearing of appeal before this Court no attempt was made to get the charge altered nor said order was assailed by the learned A. G. A. Moreover, amend ing or altering charge at this belated stage and after more than 20 years of the occur rence would amount to denial of fair trial to the appellants. As held by the Honble Supreme Court in the case of Ranbir Yadav v. State of Bihar, AIR 1995 S. C. 1219, Sec tion 216 Cr. PC. empowers the Court to alter or add to any charge at any time before the judgment is pronounced and provides that after such alteration and ad dition of the charge the Court is required to read and explain the same to the accused in accordance with sub-section (2) thereof, it is further laid down under sub-section (3) that if in the opinion of the Court the alteration or addition to a charge is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may in its discretion proceed with the trial immediately with the altered or added charge. Sub-section (4) provides that if the alteration or addi tion is such that the proceeding immedi ately with the trial is likely to produce the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as may be necessary. Sub-section (4) provides that if the alteration or addi tion is such that the proceeding immedi ately with the trial is likely to produce the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as may be necessary. Sec tion 217 of the Code provides that when ever a charge is altered or added to by the Court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or to summon and ex amine with reference to such alteration or addition any witnesses who was already been examined unless the Court for reason to be recorded in writing considers that the desire to recall or re-examine such witness was only for the purposes of vexation or delay or defeating the ends of justice. Be sides, it permits the prosecutor and the accused to call any further witness whom the Court may think it to be material. On a combined reading of the above two section it is, therefore, evident that after an altera tion or addition of the charge the interest of the prosecution and the accused has to be safeguarded by permitting them to fur ther examine or cross- examine the witness already examined, as the case may be, and by affording them call other witnesses. It is undoubtedly true that discretion has been given to the Court to direct a new trial after addition or alteration of any charge, but it does not mean that every such addition or alteration in the charge which has been read over and explain to the accused would lead to inevitable inference that the Court has directed a new trial for them. It, there fore, follows that unless the Court passes a specific order and directs a new trial it cannot be presumed that a new trial has commenced. But no such contingency arose in this case. 22. At this stage the question of amending of altering charge or direction of fresh trial also does not arise as it would amount to denial of fair trial. In the case of Pratap Singh v. State of Haryana, 1991 Supreme Court Cases (Crl.) 699, Pratap Singh and Prakash accused were tried for murder of one Krishna and causing injury to one Nar Singh. In the case of Pratap Singh v. State of Haryana, 1991 Supreme Court Cases (Crl.) 699, Pratap Singh and Prakash accused were tried for murder of one Krishna and causing injury to one Nar Singh. The fact found before Honble Supreme Court in above case, were that Prakash was assigned the sub stantive role and was charged under Sec tion 3021. P. C. for causing death of Krishna and under Section 326 I. P. C for causing grievous hurt to Nar Singh, Pratap Singh was charged with the aid of Section 34 I. P. C. for both the offence under Section 302 read with Section 34 and under Sec tion 326 read with Section 34. The trial Court convicted both of them under Sec tion 302 and 326 read with Section 34 I. P. C. On appeal the High Court acquitted Prakash but upheld the sentence and con viction of Pratap Singh. It was contended in the appeal before the Honble Supreme Court that Prakash was confronted with evidence accusing him of the substantive charge under Section 302 I. P. C. and 326 I. P. C. and he was been acquitted by High Court whereas co-accused Pratap who was assigned liability under Section 34 has been illegally convicted. Honble Supreme Court reversed the order of High Court and held that it is obvious that on the date of charge there was no material with the prosecution to show that it was the appel lant Pratap Singh who gave knife injuries to deceased Krishna and P. W. Nar Singh. Even otherwise, when police report under Section 173 Cr. P. C. which is the basis of the charge implicated the appellant vicariously with theaid of Section 341. P. C. , it is difficult to rule out prejudice when at the trial evidence was led to show that he actually participated in the crime and in flicted injuries to the deceased and grievous hurt to P. W. Nar Singh. In any case, this cannot be certified as a fair trial. Accordingly, appellant Pratap Singh was given benefit of doubt and acquitted by the Supreme Court. In any case, this cannot be certified as a fair trial. Accordingly, appellant Pratap Singh was given benefit of doubt and acquitted by the Supreme Court. If the facts of present case are scrutinized in the light of above judg ment it comes out that the altering of charge under Section 302 I. P. C. against the appellants in no way can be certified as a fair trial as in the instant case, the F. I. R. allegation and the documents under Sec tion 173 Cr. P. C. collected by the prosecu tion clearly indicate that the appellants allegedly committed dacoity with murder and on the basis of allegations in the F. I. R. and evidence collected during investiga tion they were charged under Section 396 I. P. C. But prosecution could not prove that dacoity took place and two deceased were murdered during commission of dacoity. The evidence no doubt show that the two deceased were murdered. But the appel lant cannot be convicted under Section 302 I. P. C. merely on the basis of this proved fact as at the trial no evidence was led to show that they committed murder as it would be denial of fair trial. 23. Sri Tapal Ghosh, learned counsel for Ajanti appellant, however, contended that Ajanti appellant was neither resident of the village of prosecution witnesses, nor he was previously known to them. During investigation he claimed identification by moving an application. The learned Judi cial Magistrate allowed the application, vide order dated 20-9-1979 and directed the S. H. O. PS. Sikandararau to get the identification of appellant Ajanti con ducted. But he was not put up for iden tification and this amounts prejudice to him. On the other hand, the learned A. G. A. , contended that appellant Ajanti was sarhu of appellant Sukhpal and he was known to prosecution witnesses from before and therefore, there was no neces sity for his identification. 24. Whether test identification is necessary or not it depend upon peculiar facts and circumstances of a particular case. On the other hand, the learned A. G. A. , contended that appellant Ajanti was sarhu of appellant Sukhpal and he was known to prosecution witnesses from before and therefore, there was no neces sity for his identification. 24. Whether test identification is necessary or not it depend upon peculiar facts and circumstances of a particular case. As held by the Supreme Court in the case of Kanan and others v. State of Kerala, (1979) 3 Supreme Court Cases 319wherea witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous test iden tification parade to test his powers of ob servation. The idea of holding test iden tification parade under Section 9 of Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no test identification parade is held then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time in the Court. 25. However, it was held in the case of Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420 that there can be no dispute with regard to the principles as to the evidence relating to identification of a stranger accused involved in any crime. It is well settled that substantive evidence of the witness is his evidence in the Court but when the accused is not previously known to the witness concerned then identifica tion of the accused by the witness soon after his arrest is of great importance because it furnishes assurance that the investigation is proceeding on right lines in addition to fur nishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance both for the investigating agen cy and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of ac cused. . . . . . . . From this point of view it is a matter of great importance both for the investigating agen cy and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of ac cused. . . . . . . . But the position may be dif ferent when the accused or a culprit who stands trial had been sent not once but for quite a number of times at different point of time and places which fact may do away with the necessity of test identification parade. 26. In the light of above settled posi tion of law it is to be considered whether Ajanti appellant was previously known to the prosecution witnesses. 27. In the F. I. R. it is mentioned that amongst the dacoits Sukhpal, Harpal and Ajanti S/o Ved Ram resident of Sikandar-pur, P. S. Akbarabad and Munna C-iri were recognised. The source of acquaintance of Ajanti appellant was not mentioned in the F. I. R. Bhagwant Singh (P. W. 2) stated in his evidence that Sukhpal, Ajanti, Harpal and Munna Giri who were known to him from before were identified. He further stated that Ajanti appellant was resident of vil lage Sikandarpur and was Sarhu of appel lant Sukhpal. But in his cross-examination he admitted that Sukhpal was not real Sarhu of Ajanti appellant. However, he stated that he had seen house of Ajanti, which was at a distance of 7 kos (14 miles ). The exact relationship of Ajanti with the appellant Sukhpal has thus not been ex plained. Chandan Giri (P. W. 3) simply stated that he was knowing the appellants including Ajanti from before. But the wit ness had not named Ajanti appellant before the I. O. In his statement under Section 161 Cr. PC. he had described him as a relative of Sukhpal and Harpal of his village and resident of Sikandarpur. Though the witness has denied to have given such statement before the I. O. but the I. O. Sri Sardul Singh Uppal (P. W. 7) had proved the above statement (Ext. Kha-2 ). This clearly shows that Chandan Giri was not knowing Ajanti appellant by his name from before. Though the witness has denied to have given such statement before the I. O. but the I. O. Sri Sardul Singh Uppal (P. W. 7) had proved the above statement (Ext. Kha-2 ). This clearly shows that Chandan Giri was not knowing Ajanti appellant by his name from before. Smt. Laungsree (P. W. 5) also stated that she recognised the ap pellants including Ajanti whom she was knowing from before, but she has not dis closed source of acquaintance of Ajanti appellant. However, in her cross- ex amination she stated that she had seen Ajanti several times coming in her village. She also admitted that she was observing parda in the village. Thus, it is unsafe to believe that Smt. Laungsree (P. W. 5) was knowing to Ajanti appellant from before. 28. As held above, it has not been established that Ajanti appellant was known to the prosecution witnesses from before and in these circumstances when he claimed identification the prosecution ought to have get test identification parade conducted in the absence of such test identification parade, his identification by the witnesses for the first time in the Court was of no value. 29. Sri A. D. Giri, learned cousnel for the appellant Munna Giri contended that admittedly sister of Munna Giri appellant was married with Chauttan Giri, who is sisters son of Chandan Giri (P. W. 3 ). Chhuttan Giri was residing in his Nanihal where his mother had got land and house. The above house was sold and now it was in possession of appellants Sukhpal and Harpal. That Chandan Giri (P. W. 3) was claim ing the said house of Chhuttan Giri. Father of Munna Giri was also involved in a case under Section 107/116 Cr. PC. as opposite party against Chandan Giri (PW. 3) and therefore, he was falsely implicated on the instigation of Chandan Giri (P. W. 3 ). It is admitted to Bhagwant Singh (P. W. 2) that Chhuttan Giri and Jamuna Giri had ex ecuted sale deed in respect of some abadi land in favour of Sukhpal regarding which sale deed was obtained by him and his brothers from Chandan Giri (P. W. 3 ). In these circumstances, the possibility that Munna Giri was falsely implicated at the instigation of Chandan Giri (P. W. 3) can not be easily ruled out. 30. In these circumstances, the possibility that Munna Giri was falsely implicated at the instigation of Chandan Giri (P. W. 3) can not be easily ruled out. 30. The enmity of prosecution wit nesses with Sukhpal is admitted and his implication on account of enmity cannot also be easily ruled out. 31. From the above discussions and observations we are of the view that the prosecution utterly failed to establish the factum of dacoity in the house of Bhagwant Singh (P. W. 2) in the night of occurrence and murder of two deceased during the commission of dacoity. It appears that two deceased were murdered in some other way which the prosecution did not disclose and in the absence of any other additional or alternative charge against the appel lants they could not be convicted ana sen tenced under Section 3% I. P. C. 32. Thus, the appeals succeed. The Criminal Appeal No. 2310 of 1980 preferred by Harpal stands abated, Criminal Appeal No. 2311 of 1980 preferred by Sukhpal, Criminal Appeal No. 2234 of 1980 preferred by Munna Giri and Criminal Appeal No. 2243 of 1980 preferred by Ajanti are, accordingly, al lowed. The conviction and sentence of appellants Sukhpal, Munna Giri and Ajanti are set aside and they are acquitted of the offence to which they stood charged with. The above appellants are on bail granted by this Court. Their bail bonds are can celled and sureties are discharged. They need not surrender. Appeal allowed. .