Judgment Chandra Mohan Prasad, J. 1. As these two appeals arise out of the same judgment, they have been heard together and are being disposed of by this common judgment. 2. These appeals are against the judgment dated 29.06.1992/30.06.1992 of the 8th Additional Sessions Judge, Nalanda passed in S.T.No. 83 of 1990/9 of 1991 whereby each of the appellants has been convicted under Sec.395 of the Indian Penal Code and sentenced to undergo R.I. for seven years. 3. The fard-e-beyan of the case was recorded at 1:45 A.M. on 29th July 1989 on the statement of informant Ram Nandan Singh (P.W. 7). The informant stated that in the night intervening between 28th and 29th July 1989, he along with his wife and children was sleeping on the verandah of his house and the main gate of the house was closed and locked. A lantern was lighting on the verandah. At about 11:30 A.M. he saw that 5-7 persons were coming down from the roof and he thought that the children might have gone to the roof due to summer heat and they were coming down but out of those persons, two came and stood near him and others went to the main gate and broke the lock. Then he knew that they were dacoits. In the mean time, 8-10 dacoits came on the Verandah and flashed torch light. Dacoits pointed pistol on him. Then out of fear, his wife gave the bunch of key to the dacoits. The dacoits opened the lock of the room and entered into the room, broke open the boxes and started looting articles. He claimed to have seen the faces of the dacoits in the light of lantern and he further claimed that his family members had also seen the faces of the dacoits and they could identify them on seeing again. The description about the physical features and age of the dacoits was mentioned by him. The informant also stated that one dacoit was carrying bomb like material which exploded due to which that dacoit received injuries. The injured dacoits rubbed the blood of his wound with a piece of Sari which was used for covering T.V. The dacoits remained in the house for about half an hour and then they fled away with the booty i.e. utensils, stove, radio etc. Ajay Kumar Singh (RW. 6), Ram Bilas Singh (RW. The injured dacoits rubbed the blood of his wound with a piece of Sari which was used for covering T.V. The dacoits remained in the house for about half an hour and then they fled away with the booty i.e. utensils, stove, radio etc. Ajay Kumar Singh (RW. 6), Ram Bilas Singh (RW. 9) and Dilip Kumar (RW. 3) were sleeping at the Darwaja and a lantern was lighting there. One of the dacoits snatched the wrist watch from the hand of Ajay Singh. Ajay Singh (RW. 6) and Ram Bilas Singh (RW. 9) identified the dacoits in the torch light and the dacoit was named as Umesh Ram. The night was a dark night, hence, the dacoits could not be chased by the villagers who had assembled on hulla. On the basis of the fard-e-beyan, the F.I.R. was registered against Umesh Ram and 9-10 unknown dacoits. After lodging of the F.I.R., investigation commenced and on completion of the same, charge-sheet was submitted against the appellants and six others, namely, (1) Nakta Jamadar, (2) Mrigendra Prasad, (3) Naresh Yadav, (4) Mul Chand Raut, (5) Satto Ram, and (6) Anirudh Singh who were put on trial. On conclusion of the trial, the appellants were convicted and sentenced and the remaining six other accused persons were acquitted by the trial court. 4. At the very outset it has to be mentioned here that in this case, T.I.Parades were held twice. The first T.I. Parade was held on 29th August 1989 by the RW. 13 Md. Alam, Judicial Magistrate, 1st Class. According to the deposition of RW. 13, RW. 7 Ram Nandan Singh (informant) had identified accused Naresh Mahto carrying Lathi and Mul Chand Raut carrying Fasuli. RW. 5 Yogendra Singh identified accused Sunil Mahto carrying rifle, Naresh Yadav carrying Lathi and Mul Chand Raut carrying Fasuli. P.W. 4 Sudhir Singh had identified Sunil Mahto carrying rifle, Naresh Yadav carrying Lathi and Mul Chand Raut carrying Fasuli. RW. 6 Ajay Singh had identified Sunil Mahto carrying rifle, Naresh Yadav carrying Lathi and Mul Chand Raut carrying Fasuli. RW. 3 Dilip Kumar had identified Naresh Yadav carrying lathi and Mul Chand Raut carrying Fasuli. RW. 2 Ranjay Singh had identified accused Naresh Yadav carrying Lathi. In this case the 2nd T.I.Parade was held by RW. 8 Shilendra Kumar, Judicial Magistrate on 22nd September 1989. According to the evidence of RW. RW. 3 Dilip Kumar had identified Naresh Yadav carrying lathi and Mul Chand Raut carrying Fasuli. RW. 2 Ranjay Singh had identified accused Naresh Yadav carrying Lathi. In this case the 2nd T.I.Parade was held by RW. 8 Shilendra Kumar, Judicial Magistrate on 22nd September 1989. According to the evidence of RW. 8, the informant Ram Nandan Singh (RW. 7) had identified accused Laxmi Mahto carrying pistol and utensils and Mrigendra Prasad carrying bomb, attache and transister. RW. 5 Yogendra Singh had identified accused Mrigendra Prasad, while he was fleeing away from the P.O. RW. 4 Sudhir Singh had identified Laxmi Mahto carrying utensils and pistol, Rakta Jamadar carrying pistol and Mrigendra Prasad carrying bomb and attache. RW. 6 Ajay Singh had identified accused Laxmi Mahto carrying pistol and utensils. RW. 3 Dilip Kumar had identified accused Laxmi Mahto carrying utensils and pistol and Mrigendra Prasad carrying bomb. RW. 1 Krishna Singh had identffied accused Laxmi Mahto carrying pistol and utensils. 5. Accused Shambhu Mahto had surrendered after submission of charge-sheet and P.W.9 Ram Bilas Singh identified him in dock in court for the first time in course of his evidence saying that he (Shambhu Singh) was the dacoit who had received injury due to explosion of bomb during the occurrence. 6. Thus out of the ten accused tried by the trial court, the other six, excluding the four appellants had also been identified by several witnesses in the T.I. parade but due to various reasons as assigned by the trial court in its judgment, the identification was not believed and they were acquitted and the trial court believed only the identification with respect to the four appellants who have been convicted and sentenced as above. 7. As many as thirteen witnesses were examined by the prosecution. Two defence witnesses were also examined by the accused. Out of the prosecution witnesses, RW. 1 Krishna Singh, RW. 2 Ranjay Singh, RW. 3 Dilip Kumar, RW. 4 Sudhir Singh, RW. 5 Yogendra Singh, RW. 6 Ajay Singh, RW. 9 Ram Bilas Singh and RW. 7 Ram Nandan Singh (informant) were examined as eye witnesses to the occurrence. RW. 8 Shailendra Kumar, Judicial Magistrate and P.W. 13 Md. Zafar Imam, Judicial Magistrate had conducted the T.I.Parade, RW. 10 Raj Kishore Singh and RW. 11 Bigan Singh have been tendered by the prosecution and they did not depose in detail about the occurrence. RW. 7 Ram Nandan Singh (informant) were examined as eye witnesses to the occurrence. RW. 8 Shailendra Kumar, Judicial Magistrate and P.W. 13 Md. Zafar Imam, Judicial Magistrate had conducted the T.I.Parade, RW. 10 Raj Kishore Singh and RW. 11 Bigan Singh have been tendered by the prosecution and they did not depose in detail about the occurrence. RW. 12 Babban Sharma is the Investigating Officer of the case. 8. Out of the witnesses, P.Ws. 1, 2, 3, 4, 5, 6, 7 and 9 are the witnesses who claimed to be the eye witnesses to the occurrence and they have also identified the appellants in T.I. Parade as well as in Court, hence, the evidence of these witnesses is very material to be discussed in detail in order to find out whether the charge has been established by the prosecution beyond doubt or not. 9. RW. 1 Krishna Singh deposed that the night of occurrence was a dark night and there was no visibility. He deposed that there is a mango tree between the house of the informant and him. He further deposed that in the night of occurrence, he was sleeping on the roof of his house and he woke up hearing the sound of explosion of bomb and then carrying his torch light, he came down from the roof of his house and proceeded towards the informants house and he hid himself behind the mango tree. Then he deposes that keeping himself hiding, he flashed his torch light and in that light, he identified appellant Laxmi Jamadar carrying the pistol and utensils and that he had also identified one accused Sindhu Prasad (who has absconded). He further deposed at Para-28 of his cross-examination that the dacoits were not lighting any torch light. This witness has identified appellant Laxmi Jamadar in T.I. Parade and in court also. Thus, this witness claims to have identified accused Laxmi Jamadar during the occurrence saying that hearing the sound of explosion he hid himself behind the mango tree and flashing his torch from there, he had identified accused Laxmi Jamadar carrying pistol and utensils. According to this evidence, the dacoits were carrying pistol and bomb explosion was also made in the occurrence. According to this evidence, the dacoits were carrying pistol and bomb explosion was also made in the occurrence. According to the evidence of this witness, it appears that out of fear of being hit or assaulted, this witness hid himself behind the mango tree but this witness claims that he flashed his torch light and in that light, he identified the appellant Laxmi Jamadar out of the dacoits. it does not appeal to reason that this witness who had hidden himself behind the mango tree out of fear of being hit by the criminals would take the risk of flashing torch light from the place of his hiding only for the purpose of identifying the dacoits by taking risk of being spotted and hit by the criminals. Besides this, the evidence of the I.O. (RW. 12) is that any torch light was also not produced before him. Any torch has also not been produced in court in support of the claim of this witness that he had identified appellant Laxmi Jamadar in torch light during the occurence. There is no other means of identification, excepting the torch light. Thus, considering the circumstances in which the witness claims to have identified appellant Laxmi Jamadar, I find that the identification as claimed by this winess cannot be relied on safely. 10. RW. 2 Ranjay Singh had identified some other accused persons and he had not identified any of the appellants. 11. P.W 3 Dilip Kumar states in his evidence that in the night of occurrence, he was sleeping on the Darwaja of the informant. In his examination-in-chief at Para-3 he deposed that he had not identified any of the criminals, excepting accused Umesh Ram. Accused Umesh Ram has already been acquitted by the trial court. In Para-5 of his examination-in-chief, he further deposed that in T.I.Parade he had identified appellant Laxmi Mahto and he also identified Laxmi Mahto in dock in court. But in view of categorical statement of this witness in Para-3 that during the occurrence, he had not identified any of the criminals, excepting accused Umesh Ram, the identification by this witness of appellant Laxmi Jamadar becomes highly doubtful and such identification is not fit to be relied on. 12. But in view of categorical statement of this witness in Para-3 that during the occurrence, he had not identified any of the criminals, excepting accused Umesh Ram, the identification by this witness of appellant Laxmi Jamadar becomes highly doubtful and such identification is not fit to be relied on. 12. P.W. 4 Sudhir Singh has deposed that in the night of occurrence, hearing the hulla "Dacoit-Dacoit", he came out of his house and while he was near the house of Yogendra Singh, he flashed his torch light and at Para-3 of his examination-in-chief he deposed that he had identified appellant Sunil Mahto carrying rifle and appellant Laxmi Jamadar carrying pistol and utensils. Thereafter this witness has categorically deposed in para-3 that excepting these two appellants, he had not identified, any other criminals. This witness has identified appellants Sunil Mahto and Laxmi jamadar in T.I.Parade and in court also. Identification in torch light is claimed but at Para-21 of his cross-examination, this witness has stated that he had not shown his torch to the Investigating Officer. Here it has to be mentioned that from the evidence of P.W. 8 and P.W. 13, the Magistrates holding T.I.Parade, it appears that this witness had also identified the accused Nakata Jamadar, Mrigendra Prasad, Naresh Yadav and Mul Chand Raut (already acquitted by the trial court) in T.I.Parades but he did not identify them in court. There is categorical admission of this witness that excepting the appellants Sunil Mahto and Laxmi Jamadar he had not identified any other dacoit. In such circumstances, the act of this witness in identifying the four other accused persons, namely, Nakta Jamadar, Mrigendra Prasad, Naresh Yadav and Mul Chand Raut in T.I.Parade and failing to identify them in court indicates that the memory of this witness with regard to identifying and remembering the faces of persons and then identifying them again is not of that standard so that it can be safely believed and acted upon. Besides this, the means of identification i.e. the torch was also not produced before the I.O. or the Court. This witness claims to have identified in torch light but P.W. 1 at Para-28 has deposed that the dacoits were not flashing any torch light. Therefore, do not feel it safe to place reliance on the evidence of this witness in so far as the identification of appellant Sunil Mahto and Laxmi Jamadar is concerned. This witness claims to have identified in torch light but P.W. 1 at Para-28 has deposed that the dacoits were not flashing any torch light. Therefore, do not feel it safe to place reliance on the evidence of this witness in so far as the identification of appellant Sunil Mahto and Laxmi Jamadar is concerned. 13. P.W. 5 Yogendra Singh identified appellant Sunil Prasad claiming to have identified him in torch light. This has to be mentioned here that besides the appellants Sunil Mahto this witness had also identified three other accused persons, namely, Mrigendra, Naresh and Mul Chand (already acquitted by the trial court) in T.I.Parade attended by him but in course of his evidence in court this witness did not identify these three accused in dock saying that since much time has passed after holding of T.I.Parade, he does not remember the face of criminals. Anyway, he claims to have identified the appellant Sunil Mahto. The T.I.Parade was held much after the occurrence, when this witness is not able to keep memory of the faces of criminals whom he had identified in T.I.Parade and he fails to identify seeing them again in dock in court. I do not feel it safe to place reliance on the identification by this witness of appellant Sunil Mahto. The means of identification i.e. torch has also not been produced in Court. In such view of the matter, the identification of appellant Sunil Mahto as made by this witness becomes full of doubt. 14. P.W. 6 Ajay Singh deposed that in the night of occurrence he was sleeping at the Darwaja of the informant. He says that on hearing the sound of explosion of bomb, he woke up and then he saw that three persons were standing near the flower plant and out of those persons one snatched his wrist watch. He further deposed that he had not identiied any of the criminals. But he continued to depose that in the light of lantern, he had identified appellant Sunil Mahto carrying rifle, Laxmi Jamadar carrying Fasuli and accused Naresh Yadav (already acquitted by the trial court) carrying Lathi. This witness has identified appellant Laxmi Jamadar saying that he was carrying Fasuli but in T.I.Parade dated 22nd September 1989, this witness had identified Laxmi Jamadar saying that he had identified Laxmi Jamadar carrying pistol and utensils. This witness has identified appellant Laxmi Jamadar saying that he was carrying Fasuli but in T.I.Parade dated 22nd September 1989, this witness had identified Laxmi Jamadar saying that he had identified Laxmi Jamadar carrying pistol and utensils. Thus, there is contradiction about the manner of identification in T.I.Parade and in evidence in Court. This witness had also identified one accused Mul Chand Raut (already acquitted) in T.I.Parade but he did not identify him (Mul Chand Raut) in dock in Court. Thus, the memory of this witness due to his failing to identify accused Mul Chand Raut in dock does not remain safely reliable in the matter of identification. The lantern in the light of which the identification is claimed has also not been produced in court. Considering the evidence of this witness in Para-1 that he had not identified any of the criminals, the identification by this witness as made in T.I.Parade and in dock is not safely believable. 15. P.W. 7 Ram Nandan Singh (informant) deposed about the occurrence as per his statement in the F.I.R. He also deposed that one dacoit had bomb in his hand and the bomb exploded as a result of which the left side of the body of the dacoit was injured and other dacoits wrapped clothe over the injury and took him away. He further deposed that subsequently, he learnt that the name of the injured dacoit was Shambhu (the appellant). But he does not say as to how and from whom he had learnt that the name of the injured dacoit was Shambhu. Hence, this part of the evidence becomes hearsay evidence. He (the informant) had attended two T.I.Parades and in the parades he had identified four criminals, namely, Laxmi Mahto and Naresh Mahto (appellants) and Mrigendra Prasad and Mul Chand Raut (already acquitted by the trial court). In his evidence at para-12 he stated that he had gone to Biharsharif twice for attending the T.I. Parades and had identified dacoits. But during his evidence, he identified one culprit, namely, Laxmi Jamadar (appellant) in dock and he failed to identify the other two dacoits whom he had identified in T.I. Parade saying that since a long time had passed after T.I.Parade, he was not in a position to remember the faces of the other criminals whom he had identified in the T.I.Parades. The T.I.Parades are held in full day light and sufficient opportunity is given to the witnesses during the parade to identify the culprits. This witness is not able to recollect the faces of criminals whom he had identified in T.I.Parade in day light and after getting sufficient opportunity for it. Hence, under these circumstances, the claim of this witness about having identified appellant Laxmi Jamadar during the occurrence when the identification was made in tense atmosphere and in brief period is not fit to be relied on safely. At para-39 of his cross-examination, this witness has deposed that during the entire period in which the dacoity happened, he remained lying on his cot. This circumstance also shows that he was not in a position to identify the criminals. Moreover, the memory of this witness also does not appear to be reliable due to this witness having failed to identify two criminals in dock whom he had identified in T.I.Parade. 16. P.W. 9 Ram Bilas Singh deposed that in the light of lantern and torch light flashed by the dacoits, he had identified one dacoit with clothes wrapped on his wound. This witness identified Shambhu Mahto (appellant) for the first time in dock in court during his evidence saying that he was the dacoit who had come out of the house with clothe on his wound. Appellant Shambhu mahto has not been put on T.I.Parade. This witness (P.W. 9) is the only witness who had identified this appellant. In this context the learned trial court has discussed at para-25 of the judgment that Shambhu Mahto had surrendered after submission of charge-sheet and after his surrender he had prayed for holding of T.I.parade and the court had also ordered for arranging the T.I.Parade but it was not held. Thus, when the T.I.Parade was not held by the prosecution, despite the order of the court, the identification of this appellant (Shambhu Mahto) as made by this witness (P.W. 9) for the first time in court does not remain of much value. Besides this, it has also to be mentioned that no other witness has identified appellant Shambhu Mahto. During the evidence of P.W. 9, the trial court observed that appellant Shambhu Mahto had injury mark on his left hand and his one thumb was missing. Besides this, it has also to be mentioned that no other witness has identified appellant Shambhu Mahto. During the evidence of P.W. 9, the trial court observed that appellant Shambhu Mahto had injury mark on his left hand and his one thumb was missing. This weighed much with the learned trial court while believing the complicity of appellant Shambhu Mahto in the alleged offence. But in my opinion only this much is not sufficient to establish his complicity in the offence. 17. The informant has categorically stated in the fard-e-beyan that he and his family members had seen the faces of the criminals and they could identify them on seeing them again. Admittedly the informant was sleeping in his house with his wife and children. But his wife and children who could have been the best witness to identify the criminals have not been called for the T.I.Parade nor they were brought before the trial court. This also goes against the case of the prosecution. 18. Thus, considering the evidence of the witnesses, as discussed above, find that the prosecution has not been able to establish the complicity of the appellants beyond the shadows of reasonable doubts. Hence, the appellants are entitled to benefit of doubt. 19. in the result, both these appeals are allowed, the judgment of conviction and order of sentence are hereby set aside and the appellants are acquitted of the charges and they are also discharged from the liability of bail bonds.