P. S. NARAYANA, J. ( 1 ) CRI. A. NO. 1713/98 is preferred by A-2 and A-4 as against the Judgment dated 2-12-1998 in S. C. No. 27/97 (D) on the file of iv Additional Metropolitan Sessions Judge, hyderabad. Crl. A. No. 1741/98 is preferred by A-5 as against the Judgment in S. C. No. 27/97 on the file of IV Additional metropolitan Sessions Judge, Hyderabad. ( 2 ) THE C. I. of Police, Chiragpally Police station laid charge-sheet in Cr. No. 37/94 as against A-1 to A-7 for an offence punishable under Section 395 IPC and the case against a-6 was split up and the case against A-7 was deleted and A-1 to A-5 were tried. The learned IV Additional Metropolitan Sessions judge, Hyderabad to whom the matter was made over recorded the evidence of P. W. 1 to P. W. 11, marked Exs. P-1 to P-16 and m. Os. 1 to 4 and convicted A-2, A-4 and A-5 under Section 395 IPC and sentenced them toundergo Rigorous Imprisonment for7years and to pay a fine of Rs. 5007- each and in default of payment of fine, to suffer Simple imprisonment for 3 months. Hence the present Criminal Appeals. ( 3 ) SRI Praveen Kumar, the learned Counsel representing the appellants in both these appeals had pointed out that the in view of the fact that acquittal had been recorded as against the other accused who were tried and conviction had been recorded as against a-2, A-4 and A-5 alone definitely the ingredients of Section 395 IPC are not attracted. The learned Counsel also submitted that the incident is said to have happened on 30-10-1994 and the Test Identification Parade in relation to the appellants in Crl. A. No. 1713/ 98 was held on 20-10-1995 i. e. , one year after the incident. The learned Counsel also would submit that it is alleged that these accused had been arrested on 12-9-1995 and requisition for holding Test Identification parade was given on 10-11-1995 and the test Identification Parade was held on 20-10-1995. The Counsel also wouid submit that the prosecution had not given any explanation for the delay in holding the Test identification Parade. The learned Counsel aiso would maintain that M. Os. 2 and 4 are common articles and no Test Identification parade was conducted to identify these articles. The Counsel also wouid submit that the prosecution had not given any explanation for the delay in holding the Test identification Parade. The learned Counsel aiso would maintain that M. Os. 2 and 4 are common articles and no Test Identification parade was conducted to identify these articles. The learned Counsel also would submit that the panch witnesses P. W. 5 and p. W. 6 were declared hostile and hence absolutely there is no evidence in relation to recovery. The learned Counsel also would further submit that as far as the appellant in crl. A. No. 1741/98 is concerned i. e. , A-5, the test Identification Parade was held on 7-6-1997 i. e. , nearly three years after the incident. The Counsel also would contend that the identification of A-5 by P. W. 2 who is aged about 70 years having defective eye sight should not have been relied upon. The counsel also pointed out certain other discrepancies and placed reliance on certain decisions to substantiate his contentions. ( 4 ) ON the contrary, the learned Additional public Prosecutor had taken this Court through the findings recorded by the learned judge and also the evidence available on record and would contend that though p. W. 5 and P. W. 6, the panch witnesses were declared hostile, the evidence of p. W. 11, the Investigating Officer is available on record in relation to recovery and there is no reason why the Investigating Officer should falsely implicate these accused and further the accused are not claiming these items and hence in the light of the evidence of P. W. 11 coupled with the evidence of P. W. 1 and p. W. 2, the conviction and sentence are to be confirmed or at least in the alternative since the recovery is said to have been made from a-2 and A-4, at least A-2 and A-4 are liable to be convicted under Section 412 lpc. ( 5 ) HEARD both the Counsel. ( 6 ) THE episode according to the prosecution is that on 30-10-1994 during night after dinner Jaipal was sleeping inside his house and his parents Hussainappa and manemma were sleeping in the varandah of his house. At about 11 p. m. on hearing the barking of the dogs, Hussainappa woke up. ( 5 ) HEARD both the Counsel. ( 6 ) THE episode according to the prosecution is that on 30-10-1994 during night after dinner Jaipal was sleeping inside his house and his parents Hussainappa and manemma were sleeping in the varandah of his house. At about 11 p. m. on hearing the barking of the dogs, Hussainappa woke up. Four persons came to his house and asked him to open the doors saying that they were police personnel and that S. I. of Police had sent them to check for illegal firearms. The father of the P. W. 1/complainant opened the doors. The said persons entered the house and started searching for valuables. They took one iron trunk containing one gold nanu, gold gundlu, gold ear tops, silver leg rings and net cash of Rs. 8,000/ -. On seeing this the father and the mother of P. W. 1/ complainant started raising hue and cry. One of the offenders beat the father of the complainant with a stone on his head causing bleeding injury. The offenders fled away along with the booty. P. W. 1/complainant went to police station Chiragpally and lodged a written complaint as above. On receipt of the said complaint, the S. !. of Police, Chiragpally registered a case in Cr. No. 37/94 under section 394 IPC. The C. l. of Police, zaheerabad Town took up the investigation. The injured Hussainappa was sent to government Hospital, Zaheerabad where he was treated by the Doctor. The Doctor opined that the injury sustained by hussainappa is simple injury and was caused by a blunt object. During the course of investigation on 12-9-1995 A-1 to A-4 were apprehended near Amrith Singh Dhaba at zaheerabad and were produced before the c. I. of Police who interrogated them and recovered the stolen articles. A-5 was subsequently apprehended . The Test identification Parade was conducted and after completion of investigation charge-sheet was filed. ( 7 ) THE Prosecution examined P. W. 1 to p. W. 11 and marked Exs. P-1 to P-16 and m. Os. 1 to 4. P. W. 1 and P. W. 2 are the victims and P. W. 3 is the person who apprehended the accused. P. W. 4 is the panch witness to the scene of offence, p. W. 5 and P. W. 6 are the panch witnesses to the panchanama of confession-cum- seizure. P-1 to P-16 and m. Os. 1 to 4. P. W. 1 and P. W. 2 are the victims and P. W. 3 is the person who apprehended the accused. P. W. 4 is the panch witness to the scene of offence, p. W. 5 and P. W. 6 are the panch witnesses to the panchanama of confession-cum- seizure. P. W. 7 is the Judicial First Class magistrate who conducted the Test identification Parade on 20-11-1995 in relation to A-1 to A-4. P. W. 8 is the Doctor who treated P. W. 2. P. W. 9 is the Judicial first Class Magistrate, who conducted the test Identification Parade on 7-6-1997 in relation to A-5. P. W. 10 is the S. I. of Police who registered the case on the basis of ex. P-1 in Cr. No. 37/94. P. W. 11 is the investigating Officer who had completed investigation and filed the charge-sheet. ( 8 ) THE evidence of P. W. 1 and P. W. 2 is to the effect that P. W. 1 was sleeping inside the house along with his wife. His father p. W. 2 was sleeping in the varandah and at about 11 p. m. on hearing the barking of the dogs, P. W. 1 heard that his father was questioned by someone for the illegal possession of firearms and when P. W. 1 called P. W. 2 to open the door P. W. 2 opened the doors and four offenders entered the house and had taken away the valuables from the house including cash of rs. 8,000/- and after committing the offence they went away. P. W. 3 is the Police constable who apprehended A-1 to A-4 on 12-9-1995 at 10. 30 a. m. at the outskirts of zaheerabad village. P. W. 4 and P. W. 5 were examined in relation to the confession and the recovery from A-1 to A-4 and they were declared hostile. P. W. 6 who was examined in relation to Exs. P-2 to P-9 also was declared hostile. P. W. 7 conducted the Test identification Parade in District Jail, Sanga reddy on 20-10-1995 and P. W. 2 identified a-2 and A-4 alone and P. W. 1 had not identified any one of the accused. Likewise, p. W. 9 conducted the Test Identification parade on 7-6-1997 in relation to A-5. P. W. 1 and P. W. 2 no doubt identified A-5. Likewise, p. W. 9 conducted the Test Identification parade on 7-6-1997 in relation to A-5. P. W. 1 and P. W. 2 no doubt identified A-5. P. W. 11 is the Investigating Officer who had conducted the panchanama of scene of offence Ex. P-15. When the Police Constables apprehended A-1 to A-4 on 12-9-1995 he had interrogated the accused in the presence of P. W. 5 and P. W. 6 and recorded the statements and recovered the property and also sent requisition to Judicial First Class magistrate to conduct Test Identification parade and after completion of investigation he filed the charge-sheet ( 9 ) THE defence of the accused is one of total denial. The charge-sheet was originally filed as against A-1 to A-7, but however A-1 to A-5 alone were tried. As far as the identity of the accused is concerned, there is some discrepancy. P. W, 2 identified A-2 and A-4 only. P. W. 1 did not identify any one in the identification parade dated 20-10-1995. In the identification parade dated 7-6-1997 both p. W. 1 and P. W. 2 identified A-5. P. W. 2 had not identified A-2 and A-4 in the court, but he was able to identify A-5 only and there is no recovery from A-5. P. W. 1 and P. W. 2 deposed that four offenders entered the house and had taken away the valuables from the house including cash of Rs. 8000/- and hence it is highly doubtful whether A-5 is in any way concerned with the commission of the offence on the fateful day. In Shivarathri @ gundlakomuraiah v. State of AP. where robbery was alleged to have been committed on persons going on road at night time and accused are strangers to victims and out of five only one of them could identify the accused in the identification parade and the accused were arrested five months after the occurrence and the identification parade was conducted one month after the arresf of the accused and the delay was not explained and where recovery of articles from the accused also was found not reliable, it was held that identification in Court does not help the prosecution. In Manepalli Anjaneyulu v. State of A. P. the Division Bench held that the description or identification marks mentioned by witnesses in their Section 161 Cr. In Manepalli Anjaneyulu v. State of A. P. the Division Bench held that the description or identification marks mentioned by witnesses in their Section 161 Cr. P. C. statements assume significance in a dacoity case and the Test Identification Parade held after a considerable delay detracts from its credibility and where photos of accused and also police officials were published in newspapers far earlier to the holding of identification parade the identification parade cannot be believed. In Harinath v. State of u. P. 3 it was held the test identification parade held after unexplained delay of four months after arrest of the accused detracts from its credibility and the benefit of this unexplained lack of promptitude in holding the test identification enured to the accused. In Soni v. State of Uttar Pradesn the Apex Court held that the identification parade held after a lapse of 42 days from the date of arrest of the appellant would throw doubt on the geuninenessofthe parade. In State of Andhra pradesh v. M. V. Ramana Reddy where there was delay in holding identification parade and no valid explanation was given and the evidence of prosecution regarding identity of accused was not absolutely reliable, the accused was held to be entitled to benefit of doubt. In Subhash v. Shiv Shankar where test identification parade was held after a delay of four months and witnesses had not given any description of the accused either in fir or in their statements during investigation it was held that conviction cannot be based solely on such identification and the accused to be given benefit of doubt. In Dana Yadav @ Dahu and others v. State of Bihar the apex Court while dealing with when identification parade should be conducted and what is the credibility of witness identifying an accused for the first time in court, held: (A) If an accused is wellknown to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same. (B) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, a Court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is bona fide or a mere pretence and/or made with an ulterior motive to delay the investigation. In case Court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is a mere pretence and/or made with an ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily enure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so-called claim that the accused was known to him from before and the evidence of identification in Court should not be accepted. But in case either prayer is not granted or granted but no test identification parade held, the same ipso facto cannot be a ground for throwing out evidence of identification of an accused in Court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in Court to the identity of the accused from before is trustworthy or not. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, butnosuch parade was held, would not in any manner affect the evidence adduced in Court in relation to identity of the accused. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in Court. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in Court. (C) Evidence of identification of an accused in Court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in Court. (D) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable dispatch for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits. (E) Failure to hold test identification parade does not make the evidence of identification in Court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in Court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law. (F) In exceptional circumstances only, as discussed above, evidence of identification for the firsttime in Court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction. (G) Ordinarily, if an accused is not named in the First Information Report, his identification by witness in Court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above. (G) Ordinarily, if an accused is not named in the First Information Report, his identification by witness in Court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above. " ( 10 ) IT is no doubt true that the appellants are not claiming these properties but the question is whether there is acceptable evidence on record to sustain the conviction of these appellants under Section 395 IPC, p. W. 1 and P. W. 2 deposed that four offenders entered the house on the fateful day. Though a-1 to A-5 were tried, only the appellants were convicted. Section 391 IPC dealing with Dacoity specifies:"when five or more persons conjointly, commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity". Section 395 IPC dealing with punishment for Dacoity reads:"whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. "the evidence of P. W. 1 and P. W. 2 is that four offenders entered the house on the fateful day. Though A-1 to A-5 had been tried others were acquitted and these appellants alone had been convicted. Apart from this aspect of the matter, there is also no clear identification of these persons either betore the Court or in the Test Identification Parades. Even in the Test Identification Parades, the witnesses had not clearly identified and the test Identification Parades had been conducted after sufficiently a long time which would definitely loose their credibility. Apart from these aspects the very recovery had not been proved since except the evidence of the Investigating Officer no independent evidence is available and they were declared hostile. It is made clear that the appellants are not claiming any of these items, but the question is whether the appellants can be linked with the commission of the offence and whether the conviction recorded by the learned Judge under Section 395 IPC be sustained. It is made clear that the appellants are not claiming any of these items, but the question is whether the appellants can be linked with the commission of the offence and whether the conviction recorded by the learned Judge under Section 395 IPC be sustained. For the reasons recorded above, though the appelants are not claiming these items, definitely the appellants are entitled to the benefit of doubt in view of the inherent defects in the version of the prosecution and also the very applicability of Section 395 IPC and the facts and circumstances of this case. Accordingly, the conviction and sentences recorded are hereby set aside and the appeals are hereby allowed. The bail bonds of the appellants shall stand cancelled.