Judgment 1. These two appeals were taken up for analogous hearing because they arise out of the same judgment passed by Shri G. S. Chaube, Ist Additional Sessions Judge, Rohtas at Sasaram, dated 12-5-1989 in Sessions Trial No. 47/35 of 1986. In Criminal Appeal No. 243 of 1989, appellants-Jai Ram Ahir alias Jai Ram Yadav, Mahendra Yadav and Shri Bhagwan Dusadh were convicted under S. 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. In Criminal Appeal No. 257 of 1989, appellant-Gudari Chamar was convicted under S. 395, I.P.C. and sentenced to undergo rigorous imprisonment for ten years. Along with the aforesaid appellants, some other persons were also facing trial who were, however, acquitted. 2. The prosecution case, as recorded in the fardbeyan of Mundrika Singh, was to the effect that in the night betwixt 12th/13th April, 1986 at about 1 a.m. he was sleeping in his cottage when he heard the alarm of dacoit dacoit. Subsequently he saw that some dacoits were entering into his house after scaling over the roof of his tiled house. The dacoits opened the main exit door of the house and 8-10 dacoits made entry into the inner portion of the house after scaring female inmates. The dacoits carried away several articles of the house including boxes containing ornaments, clothes etc. The informant and other male members of his family could not reach their main residential house but they had occasion to observe the dacoits from the cottage in which they were sleeping. The dacoits while escaping after committing dacoity also indulged in indiscriminate firing causing injuries to a neighbour Kashinath Singh. Altogether, articles worth Rs. 11000.00 were carried away by the dacoits. 3. The accused-appellants took this defence that they had been falsely implicated and they were paraded before the witnesses much before the T.I. parade was held. The learned trial Judge on the basis of almost 12 witnesses found the accused-appellants guilty and sentenced them, as stated above. It is, however, noted that along with the accused-appellants, there were several other persons who were facing trial before the lower Court, but they were acquitted from all the charges levelled against them. The learned trial Judge on the basis of almost 12 witnesses found the accused-appellants guilty and sentenced them, as stated above. It is, however, noted that along with the accused-appellants, there were several other persons who were facing trial before the lower Court, but they were acquitted from all the charges levelled against them. It is further to be noticed that appellant-Mahendra Yadav and Ramlal Dusadh were charged under S. 412, I.P.C. besides under S. 395, I.P.C. The learned trial Judge acquitted appellant-Mahendra Yadav and Ramlal Dusadh (not the appellant) from the charge of S. 412, I.P.C. because he held that test identification of articles recovered was totally farce. So the appellants before this Court stand convicted only under S. 395, I.P.C. At this stage, it is further to be recorded that earlier one Gudari Chamar was arrested on a tip off and upon his confessional statement, other appellants were arrested and certain other articles were also recovered from their house. 4. Since the appellants have been acquitted under S. 412, I.P.C., I do not think it necessary to examine evidence with respect to this charge. So the charge under S. 395, I.P.C. has to be substantiated from the evidence on record. Out of the P.Ws. examined, P.W. 1 was tendered. P.W. 2 Hira Lal Ram is a witness of the seizure of articles and it has been already stated above that the appellants have been acquitted of the charge under S. 412, I.P.C. P.W. 4 is another seizure list witness whose evidence is insignificant because of acquittal of the appellantsfrom the charge under S. 412, I.P.C. P.W. 3 was tendered. P.W. 5 was also tendered, P.W. 6 is Prabhawati Devi, P.W. 7 is Suka Devi. These lady inmates are so-called eye-witnesses with respect to the dacoity in the house. P.W. 8 is another eye-witness. P.W. 9 Mundrika Singh is the informant himself. P.W. 10 is T.I. Magistrate, P.W. 11 is I.O. P.W. 12 is B.D.O. who held T.I. of the articles. 5. I find from the evidence that the learned Judge held the accused-appellants guilty on the evidence that they were identified by witnesses before T.I. Magistrate as also in Court. So conviction of the appellants depends specially on the basis of T.I. before the Magistrate and in Court. So the evidence has to be examined from the angle of their identification. I find from the evidence that the learned Judge held the accused-appellants guilty on the evidence that they were identified by witnesses before T.I. Magistrate as also in Court. So conviction of the appellants depends specially on the basis of T.I. before the Magistrate and in Court. So the evidence has to be examined from the angle of their identification. In this connection, it is firstly to be noted that T.I. chart attached with the records of the case makes an interesting reading and it would be a pertinent question whether the concerned T.I. chart can be relied upon and in that view of the matter the evidence of T.I. Magistrate shall also become subject to serious consideration. I find that T.I. chart (Ext. 5) in its various columns contains various kinds of dot pens being used. The first column indicates a pen having been used differently and the second column makes the more confusing disclosure because serial No. 1 which contains the name of identifying witness Mundrika Singh is in an ink which tallies with the ink of column No. 1. The names of suspects at Serial Nos. 2, 3 and 4 contain another ink in column No. 2 of the T.I. chart. Column No. 3 of the T.I. chart which contains the names of the suspects is perhaps in the same ink which was used for column No. 1. Column No. 5 of the T.I. chart as also column No. 6 and column No. 7 again do not tally with one another. The signature of the T.I. Magistratre on the second page of the T.I. chart is also in different ink or dot pen. Therefore, this T.I. chart is very suspicious document. In this circumstance, it would become doubtful whether this T.I. chart was prepared by T.I. Magistrate and immediately after holding T.I. parade or at any time thereafter by himself or under his dictation. This being the position, evidence of P.Ws. with respect to identification further gains significance. In this connection, firstly I shall refer to the evidence of P.W. 6 Prabhawati Devi. At paragraph 20, she stated that she had gone to jail to identify dacoits. Darogaji brought her to Sasaram. At paragraph 22 she stated that at the time of T.I. parade, several persons were standing in a queue. with respect to identification further gains significance. In this connection, firstly I shall refer to the evidence of P.W. 6 Prabhawati Devi. At paragraph 20, she stated that she had gone to jail to identify dacoits. Darogaji brought her to Sasaram. At paragraph 22 she stated that at the time of T.I. parade, several persons were standing in a queue. The persons standing in a queue were of different complexions and were wearing different kinds of clothes. P.W. 7 who is another lady inmate of the house, which was subjected to dacoity, stated at paragraph 9 that she had gone to Sasaram jail where T.I. parade was conducted in a Maidan inside the jail campus. Daroga had also gone to jail campus. The persons who were standing in queue were 30 to 40 in number. All the four persons whom she identified were standing at different places and not in a row. P.W. 8 Gupteshwar Singh, another victim of dacoity and a relation of the informant, stated at paragraph 12 that in queue, 31 persons were standing. All were of different heights and complexions and they were wearing different kinds of clothes. P.W. 9 Mundrika Singh said at paragraph 22 that when he went to jail to attend T.I. parade for the first time, 40 persons were standing in a queue. All of them were of different complexions and were wearing different clothes. The aforesaid evidence of the P.Ws. who were all inter-related, indicates that T.I. parade was not held properly nor the T.I. Magistrate took the precaution to follow norms and rules pertaining to test identification parade. Normally, as per established standard, suspects should be mixed up with various persons of more or less similar features and they should also be dressed in similar dress as far as possible so that suspects may be identified and picked up from the confused mass of individuals. This practice was not followed by T.I. Magistrate and presence of Daroga inside the jail campus in a Maidan where T.I. parade was held, as was admitted by one of the P.Ws. also makes it doubtful whether of course T.I. parade was held properly in which the appellants were identified as dacoits having committed loot in a house. 6. It was submitted before me that some of the P.Ws. also makes it doubtful whether of course T.I. parade was held properly in which the appellants were identified as dacoits having committed loot in a house. 6. It was submitted before me that some of the P.Ws. admitted that Mahendra Ahir and Jai Ram Ahir had their relations in the P.O. village and hence they were known to the villagers. The chance of some persons having relationship in a particular village being known to the villagers may be very much there, but this in itself may not indicate that all the villagers specially females would be knowing such person, but some probability of this kind cannot be ruled out. In such a circumstance, the arrest ofaccused-Jai Ram Ahir, Mahendra Yadav and Shri Bhagwan Dusadh on the confessional statement of Gudari Chamar, which was made before police, is also to be viewed with suspicion. In this background, I shall examine the evidence with respect to means of identification which the P.Ws. claimed. The informant add his nephew, who were examined in Court, referred to the lantern which was burning in the cottage or cattle-shed where they were sleeping in the light of which they claimed to observe the flying dacoits and identified them there. The trial Judge has doubted the very existence of this hut as also presence of lantern and so he discarded the probability of the informant and his nephew in identifying the flying dacoits. However, he has relied upon the statements of female inmates to the effect that they had identified the dacoits in torch light, which they were themselves flashing as also in the light of the earthen lamp which was burning in the house. The learned trial Judge opined that dacoits normally use high powered torches and flash the same in search of articles, so it was possible that witnesses mights have identified the dacoits in the light reflected by torch. In this connection, I am of the opinion that the learned trial Judge has assumed a particular fact on his own whim and did not consider the fact that when dacoits will flash torch, the torch light would not fall on their faces but upon the floor of the walls of the house in search of articles. In this connection, I am of the opinion that the learned trial Judge has assumed a particular fact on his own whim and did not consider the fact that when dacoits will flash torch, the torch light would not fall on their faces but upon the floor of the walls of the house in search of articles. The light which will be reflected around the flash of torch would not be so much as to give witnesses or scared inmates an opportunity to look at the faces of the dacoits in proper exposure so that features of the faces will be exposed in broad focus. Moreover, scared inmates would not be in such a psychological mood to look at the faces of the dacoits. Moreover, when the dacoits will flash torches, inmates may face dazzle of their eyes so as not to look at the faces of the dacoits. In all circumstances, therefore, chance of the inmates identifying the dacoits in the torch light flashed by the latter was very remote. 7. So far Dhibri is concerned, it gives very little light and it extends not so much as to fall on the faces of dacoits specially in view of the fact that the inmates would not be able to bring Dhibri near the faces of dacoits to identify them, otherwise they would be subjected to assault, and in such a case, Dhibri may be broken and damaged by dacoits. The story of the dacoits being identified in the light of Dhibri is also, therefore, doubtful. The means of identification, therefore, becomes suspect specially in view of the evidence of identification which I have discussed above. 8. The discussion of the evidence which I have referred to above reveals unmistakably that the appellants conviction on the basis of identification was not proper and supported by evidence on record. Perhaps, the trial Judge based their conviction on the ground that dacoity is a serious offence and since the appellants, referred to above, were identified, they deserve conviction. This was not proper judicial approach and law of the land is still that prosecution must prove its case beyond all reasonable doubts. The Court attaching to the propriety of some of the appellants being known to the villagers of the informant naturally creeps in specially in view of the evidence on record with respect to identification. 9. This was not proper judicial approach and law of the land is still that prosecution must prove its case beyond all reasonable doubts. The Court attaching to the propriety of some of the appellants being known to the villagers of the informant naturally creeps in specially in view of the evidence on record with respect to identification. 9. In the result, I find and hold that the order of conviction and sentence is not sustainable. This appeal is accordingly allowed and the order of conviction and sentence is hereby set aside. The accused-appellants shall stand acquitted and discharged from their bail bonds.Appeal allowed.