JUDGMENT : Virendra Kumar Srivastava, J. The instant appeal has been filed against the judgment and order dated 06.02.1981, passed by the IInd Additional Sessions Judge, Bahraich, in S.T. No. 417 of 1979 (State vs. Awadh Ram and others), arising out of the Case Crime No. 43 of 1979, under Section-396 IPC, Police Station (in short P.S.) Sonwa, District-Bahraich whereby respondents-accused (hereinafter referred to as 'the respondents,) Awadh Ram, Piarey, Chhotey, Gaya Prasad, Jhabbar, Kallan, Azeem Sain, Bharosey and Hari Ram have been acquitted by the trial Court from the charge for offence under Section 396 IPC. 2. The brief facts, arising out of this appeal, are that Awadh Ram, (Pw1), informant, resident of village Majhawwa Bujurg, P.S.-Sonwa, District Bahraich, lodged first information report (in short FIR) (Ext. Ka-1), on 03.7.1979 at 6.40 A.M., stating therein that in the intervening night of 2/3 July, 1979, he, his father Samaydin, brother Faren and other family members were sleeping outside his house whereas the ladies were sleeping inside the house. A lantern was emitting light on the Darawaja (outer door of Court-yard) of the house. At about 00.30 A.M., 18-20 dacoits appeared at his house and as they dashed the door, he and other family members, sleeping outside the house, got-up. It is further stated that when the informant (Pw-1) and his other family members asked about the identity of the dacoits , they started to beat them by Lathi-Danda and by removing the Tatia (temporary partition made by gross and wood), they, armed with Lathi, Danda, Pistol, Gun, Ballam and Torches, entered into his house. Informant (Pw-1) and his family members raised alarm whereupon Faquirey (Pw-5), Munna (not examined), Pahalwan (not examined), Ashok Kumar (not examined), Ram Adhar (not examined) Daya Ram (not examined), deceased Ram Sumiran , Autar (not examined) and other co-villagers came with Torches, Lathi, Danda and Beroo. Ashok Kumar put fire on Jhakhar (heap of Chara) which emitted sufficient light to identify the dacoits. It is further stated in FIR that dacoits started fire with gun and country made pistol which caused injury to Samaydin, Smt. Dulara (wife of informant), and Ram Sumiran and they died on the spot. Ashok Kumar put fire on Jhakhar (heap of Chara) which emitted sufficient light to identify the dacoits. It is further stated in FIR that dacoits started fire with gun and country made pistol which caused injury to Samaydin, Smt. Dulara (wife of informant), and Ram Sumiran and they died on the spot. Since the dacoits were bent upon to kill so many people of the village, the villagers challenged the dacoits and attacked upon them with Lathi, Danda, Beroo, brick and stones; one dacoit was caught and died on the spot, due to injuries caused by the villagers, crying Sardar-Sardar and some dacoits had also got serious injuries in counter attack. It is further stated that dacoits remained at the place of occurrence about half-an-hour and looted the house of Chhotey Lal (not examined), Ram Autar (not examined) and Maya Ram (not examined), besides the house of informant and thereafter they escaped from the place of occurrence towards western side of the village after looting the jewellery and cash. It is further stated in FIR that Faquirey (Pw-5), Munna Lal(not examined) and Sarojini (not examined) also got serious injuries, caused by dacoits and they had been sent to Sadar Hospital, Bahraich for treatment. It is further stated that dacoits had been identified in the light of torches, lantern and light emitted from burning of Jhakhar. 3. On the basis of the said information, the Chik report (Ext.-Ka 4) was prepared, a case was registered on report No.9 at 06.40 A.M. on 03.07.2019 (Ext. Ka-5) and investigation of the case was entrusted to Sub Inspector (In short S.I). Sukh Sagar Singh (Pw-7) who rushed to the place of occurrence, inspected the dead body of Samaydin, Smt. Dulara Devi, Ram Sumiran and unknown dacoits, prepared inquest memo of the dead bodies and other relevant papers (Ext. Ka-6 to Ext. Ka-17), required for post-mortem examination, sent the dead bodies to District Hospital Baharich for post-mortem examination, recorded the statement of Awadh Ram (Pw-1), Budh Sagar (Pw-2), Tula Ram (Pw-3), Devesh Kumar (Pw4), Faquirey (Pw-5) and other witnesses, inspected the place of occurrence and prepared site plan (Ext.Ka-18), took the sample of blood stained and plane earth, a pair of Sandle, one shoe, empty cartridges, ashes of burnt Jhakhar from the place of occurrence, inspected the lantern and torches and prepared memo (Ext. Ka-19 to Ext.Ka-25). Ka-19 to Ext.Ka-25). Meanwhile the investigation was undertaken by Station Officer Sonwa, S.I. Rana Pratap Singh (Pw-9) on 05.07.1979 who arrested the respondent Awadh Ram and also sent instructions to S.I. T.N. Singh (Pw-8) of Police Station Hardi for arrest of other respondents. S.I. Ram Nagina Singh (Pw-6) arrested respondents Hari Ram, Azeem Sain and Bharosey, S.I. T.N. Singh (Pw-8) arrested respondents Tej Bahadur, Gaya Prasad, Chhotey, S.I. Shyam Nath Singh (Pw-10) arrested respondent Kallan, S.I. Mehndi Hasan (Pw13) arrested respondent Jhabbar, and Constable(In short Const.) Daya Shanker (Pw-16) arrested respondent Piarey. 4. After arrest of respondents, S.I. Rana Pratap Singh (Pw-9) also sent a report for Test Identification Parade (in short ‘TIP’). Upon such report, TIP of thirteen person namely Awadh Ram, Piarey, Chhotey, Gaya Prasad, Jhabbar, Kallan, Azeem Sain, Bharosey, Hari Ram Tej Bahadur, Lalji, Jhabbar @ Rafeeq and Kirau, was conducted in District Jail Bahraich on 26.07.1979 before Ram Achhaibar Singh (Pw-14), Extra Magistrate Bahraich, by Awadh Ram (Pw-1), Budh Sagar (Pw-2), Tula Ram (Pw-3), Devesh Kumar (Pw-4), Faquirey (Pw-5), Amerika (not examined), Ramadhar (not examined), Ramavtar (not examined) and Pahalwan (not examined). Awadh Ram (Pw-1) identified six respondents Awadh Ram, Piarey, Gaya Prasad, Jhabbar, Kallan, and Hari Ram and one accused Tej Bahadur (since deceased). Budh Sagar (Pw-2) identified six respondents Awadh Ram, Piarey, Chhotey, Gaya Prasad, Jhabbar, and Kallan. Tula Ram (Pw-3) identified three respondents Chhotey, Jhabbar, Kallan including one accused Tej Bahadur (since deceased). Devesh Kumar (Pw-4) identified all the respondents including one accused Tej Bahadur (since deceased). Faquirey (Pw-5) identified five respondents Awadh Ram, Piarey, Chhotey Lal, Gaya Prasad and Jhabbar and one accused Tej Bahadur (since deceased). Pw-14, on the performance of the witnesses, prepared TIP report (Ext.-34). After investigation, PW-9 submitted a charge sheet (Ext. Ka-28) only against the respondents Awadh Ram, Piarey, Chhotey Lal, Gaya Prasad, Jhabbar, Kallan, Azeem Sain, Bharosey, Hari Ram including accused Tej Bahadur, Lalji , Jhabbar@ Rafeeq and Kirau before the competent Magistrate, who, since the offence was exclusively triable by the Court of Session, after providing the copies of relevant documents in view of Section 207 of Code of Criminal Procedure 1973 (in short Code), committed the case for trial to the Court of Session Judge, Bahraich. 5. 5. Learned counsel appearing for the State and defence were heard at the stage of framing of charge by the trial Court ; Lalji, Jhabbar @ Rafeeq and Kirau were discharged whereas charge was framed against respondents including one accused Tej Bahadur, who died during trial. 6. In order to prove its case, the prosecution examined Awadh Ram (Pw-1), Budh Sagar (Pw-2), Tula Ram (Pw-3), Devesh Kumar (Pw-4), Faquirey (Pw-5), S.I. Ram Nagina Singh (PW-6), Sukh Sagar (Pw-7), S.I. T.N. Singh (Pw-8), S.I. Rana Pratap Singh (PW-9), S.I. Shyam Nath Singh (Pw-10), Const. Govinda Prasad Awasthi (PW-11), Const. Brij Mohan Pathak (Pw-12), Const. Mehndi Hasan (Pw-13), Ram Achhaibar Singh (Pw-14), Const. Ashok Kumar Singh (Pw-15) and Const. Dayashankar Singh (Pw-16). Awadh Ram (Pw-1); Budh Sagar (Pw-2); Tula Ram (Pw3), Devesh Kumar (Pw-4) and Faquirey (Pw-5) are witnesses of fact as well as eye-witnesses whereas rest witnesses are formal witness. 7. After conclusion of prosecution evidence, statement of respondents were recorded under Section 313 of the Code wherein they denied the prosecution story and stated that they had been falsely implicated. They further stated that they were arrested from their houses; their photographs were taken in the police station; prosecution witnesses already knew them and they were shown to the prosecution witnesses prior to TIP. Respondent Awadh Ram further stated that Awadh Ram, Tula Ram, Devesh Kumar, Pahalwan, Budh Sagar (Pw-1 to Pw-5) respectively, already were knowing him prior to alleged incident as his maternal uncle Kandhai Lal (Cw-1) resides in village Manjhawa Bujurg who was neighbour of the informant Awadh Ram (Pw-1) and other prosecution witnesses. He further stated that a second daughter of CW-1 was married with his elder brother and since no one was available to look after the agricultural farming of Kandhai Lal, he used to look after his farming, Awadh Ram (Pw-1) used to quarrel with Khandhai Lal (Cw-1) and falsely implicated him. 8. Respondent-Chhotey further stated that he is relative of respondent Awadh Ram; Kandhai (Cw-1) who is in-laws of respondent Awadh Ram , resides in village Manjhawa Bujurg, is neighbour of the informant (Pw-1). He also used to go to the village of CW-1. Respondents Hari Ram and Bharosey further stated that they were servant for only Rs.30/-of village Pradhan Ikrauli and left his service, hence they were falsely implicated. He also used to go to the village of CW-1. Respondents Hari Ram and Bharosey further stated that they were servant for only Rs.30/-of village Pradhan Ikrauli and left his service, hence they were falsely implicated. Respondent Gaya Prasad stated that he was falsely implicated by the police and he was shown to the witnesses at Kotwali and his photo was also taken. Respondent Azeem Sain further stated that Devesh Kumar (Pw-4) had caused an accident by his by-cycle wherein his goat was injured, and due to dispute whereof he was falsely implicated. 9. Kandhai (Cw-1), resident of Majhawwa Bujurg, P.S.-Sonwa, District Bahraich, was produced before Trial Court by the respondents, in their defence, who stated that his two daughters namely, Parwati and Kalawati had been married with Kailash and respondent Awadh Ram, who were sons of Ram Lautan and respondent Awadh Ram is his son-in-law. He further stated that respondent Awadh Ram used to come frequently at his house. 10. After conclusion of evidence of both sides and hearing the arguments of learned counsel for both sides the learned trial Court acquitted all the respondents vide impugned judgment and order. Aggrieved by the said judgment and order the State has filed this appeal. 11. During pendency of the appeal, the respondent Chhotey Lal and Gaya Prasad did not appear despite repeated notices, hence the appeal against them was separated vide order dated 05.07.1982, while respondent no.7 Azeem Sain and respondent no.8 Bharosey had died during pendency of appeal. The appeal filed against them has been abated vide order dated 10.02.2020. 12. Heard Sri Badrul Hasan learned A.G.A. appearing for appellant-State, Mr. Subodh Kumar Shukla learned counsel for remaining respondents Awadh Ram, Piarey, Jhabbar, Kallan, and Hari Ram, and perused the record. 13. Learned A.G.A. has submitted that respondents had been properly identified by the prosecution witnesses at the time of occurrence in the TIP and also before the trial Court during their examination. Learned A.G.A. further submitted that there was sufficient light of torches, Jhakhar, burnt at the place of occurrence, and lantern wherein the respondents were identified. Learned A.G.A. further submitted that trial Court did not properly appreciated the evidence. Learned A.G.A. further submitted that there was sufficient light of torches, Jhakhar, burnt at the place of occurrence, and lantern wherein the respondents were identified. Learned A.G.A. further submitted that trial Court did not properly appreciated the evidence. Learned A.G.A. further submitted that judgment of trial Court, based on the premises that respondents were shown to the witnesses in Police Station before TIP, is baseless because no such plea was taken by the respondents before the trial Court. Learned A.G.A. further submitted that the impugned judgment and order is against the settled principle of law, liable to be set aside and appeal be allowed. 14. Per-contra learned counsel appearing for the respondents submitted that prosecution has miserably failed to prove its case beyond reasonable doubt. The finding of trial Court that respondent Awadh Ram is son-in-law as well as nephew (Bhanja) of Kandhai (Cw-1) who is neighbour of Awadh Ram (Pw-1) is not disputed. Learned counsel further submitted that the prosecution story regarding the source of light at the place of occurrence is also doubtful . Learned counsel further submitted that Budh Sagar (Pw-2) has not supported the prosecution case whereas the presence of Tula Ram (Pw-3) and Devesh Kumar (Pw-4) at the place of occurrence is also doubtful. Learned counsel further submitted that the witnesses (Pw2, Pw-3 and Pw-4), produced by the prosecution, are also not named in the FIR and the prosecution has not put any explanation as to why the prosecution witnesses ,except Faquirey (Pw-5), named in the FIR, were not produced before the trial Court. Learned counsel further submitted that sole evidence of identification is not reliable because the respondents were already known to the prosecution witnesses prior to the occurrence, they had also been shown to witnesses and their photographs had also been taken by police prior to TIP proceeding. Learned counsel further submitted that the respondents are innocent, they have been falsely implicated and the judgment and order passed by the learned trial Court is well discussed and according to the settled principle of law and there is no requirement of interference in this appeal by this Court and the appeal is liable to be dismissed. 15. We have considered the arguments led by learned counsel for both the parties and perused the record. 16. 15. We have considered the arguments led by learned counsel for both the parties and perused the record. 16. The occurrence in question, that dacoity was caused in the intervening night of 2/3.7.1979 at about 00.30 A.M. in the village Majjhawa Bujurg P.S.-Sonwa, District Bahraich wherein three persons namely, Samaydin, Ram Sumiran and Dulara were killed including one dacoit was killed on the spot and Munnalal, Faquirey (Pw-5) and Sarojni were injured, is not disputed. 17. Ram Awadh (Pw1), informant and star witness of the prosecution, while supporting the prosecution case, as stated in the FIR lodged by him, has admitted in cross-examination that injured Munnalal, Sarojni and Faquirey (Pw-5) and deceased Samaydin, Dulara and Sumiran had not received injury in his presence as he had gone in village to raise alarm for witnesses. So far as the light of lantern is concerned he stated that it was very dimmer when he went to sleep. However, he further stated that all the dacoits were without any precaution to conceal their identity but he did not mention any distinction or particular of identity of any dacoits. He further admitted that he had come to Bahraich with other witnesses after 13-14 days of the occurrence. He further admitted that respondent Jhhabbar is dark black and also admitted that house of Kandhai (Cw-1) is in the south of his house but he did not know that his one daughter had been married to the respondent Awadh Ram and another to his brother. 18. Budh Sagar (Pw-2) supported the prosecution story in examination in chief but in the cross-examination he did not support the prosecution story and admitted that in the intervening night when the occurrence took place he was not present at the place of occurrence as he had gone to village Bibipur to participate Gauna ceremony of his brother Anirudh Kumar and returned in the morning of 03.07.1979. He further admitted that he had given statement in examination in chief , due to fear of police. 19. Tula Ram (Pw-3) is another eye witness who has admitted that at the time of occurrence he was teacher Salon Risia situated at a distance of 4 miles from the place of occurrence. He further admitted that he had not seen that Munna, Faquirey (Pw-5) and Sarojni were injured. He also admitted that he had not seen fire arm injury at Simiran. He further admitted that he had not seen that Munna, Faquirey (Pw-5) and Sarojni were injured. He also admitted that he had not seen fire arm injury at Simiran. He also admitted that he had not seen fire on deceased Simiran, Dulara, and Samaydin and when he saw them, they were already dead. 20. Devesh Kumar (Pw-4) was student at the time of occurrence. He admitted that dacoits were 18-20 in number and he had seen all the dacoits by face but he was not carrying a torch at that time. He further admitted that he had not informed any description or identification marks of dacoits to Investigating Officer. 21. Faquirey (Pw-5) has stated that he had informed the description and identification marks of dacoits to Investigating Officer but he could not give an explanation as to why the investigating officer had not noted that fact in his statement. S.I. Sukh Sagar Singh (Pw-7), I investigating officer, who had recorded the statement of witnesses during investigation, has admitted that Faquirey (Pw-5), in his statement, had not stated any description or identification mark of any dacoits. 22. S.I. Rana Pratap Singh (Pw-9), II investigating officer, arrested the respondent Awadh Ram and filed charge sheet (Ext.Ka-28),after the investigation. 23. Ram Achhaibar Singh (Pw-14), extra magistrate, conducted the TIP of the respondents and prepared TIP report (Ext.Ka-34). 24. S.I. Ram Nagina Singh (Pw-6), S.I. T.N. Singh (Pw-8), S.I. Shyam Nath Singh (Pw-10), Const. Mehndi Hasan (Pw-13), and Const. Dayashankar Singh (Pw-16) are the arresting police officers of the respondents whereas Const. Govinda Prasad Awasthi (Pw-11),Const. Brij Mohan Pathak (Pw-12) and Const. Ashok Kumar Singh (Pw-15) are the police officers who took away the respondents to District Jail Bahraich, after their arrest. 25. Trial Court disbelieved the testimony of aforesaid prosecution witnesses on the ground that the respondent Awadh Ram was married to the daughter of Kandhai (Cw-1) who is co-villager of the aforesaid prosecution witnesses and neighbour of informant Awadh Ram (Pw-1). Trial Court also found that Investigating Officer has also shown the house of Kandhai (Cw-1) adjoining the house of Awadh Ram (Pw-1) and Chhotey Lal. Respondent Awadh Ram has not only his Sasural in the house of Kandhai (Cw-1) but sister of Kandhai (Cw-1) was also his mother. Trial Court also found that Investigating Officer has also shown the house of Kandhai (Cw-1) adjoining the house of Awadh Ram (Pw-1) and Chhotey Lal. Respondent Awadh Ram has not only his Sasural in the house of Kandhai (Cw-1) but sister of Kandhai (Cw-1) was also his mother. On that count the trial Court was of the view that the respondent Awadh Ram had been frequently visiting to the maternal relation as well as his in-laws to the house of Kandhai (Cw-1), adjoining to the place of occurrence and the statement of Awadh Ram (Pw-1) that he did not know the respondent Awadh Ram, according to the trial Court was not reliable. The trial Court also found that Awadh Ram (Pw-1) has admitted in his examination in chief that respondent Hari Ram and respondent Bharosey (since deceased) were real brother who were resident of village Dehwa, sitauted at a distance of 2-3 furlong from the place of occurrence. The trial Court was of the view that identity of respondent Awadh Ram, Hari Ram and Bharosey (since deceased) were presumed to be known to Awadh Ram (Pw-1) and if they were present at the time and place of occurrence their names should have been disclosed in the FIR. 26. In addition to above the trial Court further found that neither any identification marks of dacoits were mentioned in the FIR nor it was stated before the trial Court by witnesses during their examination and the trial Court was of the view that if the prosecution witnesses had seen any dacoits/respondents at the time of occurrence they had noticed the peculiar feature and identity of dacoits/respondents but they failed to do so. The trial Court also found that some respondents have peculiar feature of identity in view of their clear chiken-pox’s mark and colour but none of the witness has stated any peculiar identity of any respondent. In view of the above inconsistency, irregularity, short coming and contradiction in the testimony of witnesses the trial Court disbelieved the prosecution story and acquitted all the respondents. 27. Admittedly the alleged occurrence was happened in the intervening night of 2/3.07.1979. Awadh Ram (Pw-1) has stated that dacoits were 1820 in number. In view of the above inconsistency, irregularity, short coming and contradiction in the testimony of witnesses the trial Court disbelieved the prosecution story and acquitted all the respondents. 27. Admittedly the alleged occurrence was happened in the intervening night of 2/3.07.1979. Awadh Ram (Pw-1) has stated that dacoits were 1820 in number. He specifically stated that at the time of occurrence he, Chhotey Lal, Samaydin (deceased) Feran, Sanehi and Ram Bilas were sleeping at his house and suddenly dacoits appeared and started to beat them whereupon they (including him) run away from his house and raised alarm in the village. He further stated that some dacoits entered into his house from the back side and opened the main door and thereafter the dacoits who were present at the main gate also entered into the house. He further stated that on his alarm Faquirey (Pw-5), Munnalal, Ashok Kumar, Amerika, Pahalwan, Tula Ram, Ram Adhar and other co-villagers appeared with Danda, Berroo and torches. He further stated that Ashok Kumar burnt the Jhakhar, placed near the house of one Bhagwandin. In F.I.R. (Ext.Ka-1) it is mentioned that upon alarm raised by Awadh Ram (Pw-1) and his family members, Faquirey , Munna, Pahalwan , Ashok Kumar, Ram Adhar, Daya Ram, Ram Sumiran and Awatar appeared with Lathi, Danda, Berroo and torches. Thus the presence of Budh Sagar (Pw2), Tula Ram (Pw-3) and Devesh Kumar (Pw-4) have been shown neither in the FIR nor stated by Pw-1 during his examination. Faquirey (Pw-5) has also not stated about the presence of Budh Sagar (Pw-2) and Devesh Kumar (Pw-4) at the time of occurrence. The prosecution has not given any explanation that if these witnesses were present at the time and place of occurrence why their presence were not shown in the FIR and also not stated by Awadh Ram (Pw-1) in his statement. Thus, the trial Court was of the view that these witnesses were not present at the time and place of occurrence. For the reasons mentioned in the impugned judgment and order we are also of the view that the findings of trial Court requires no interference in the light of aforesaid grounds also. 28. Thus, the trial Court was of the view that these witnesses were not present at the time and place of occurrence. For the reasons mentioned in the impugned judgment and order we are also of the view that the findings of trial Court requires no interference in the light of aforesaid grounds also. 28. Learned trial Court has specifically doubted the presence of Tula Ram (Pw-3) and Devesh Kumar (Pw-4) on the ground that at the time of occurrence, Tula Ram (Pw-3) was teacher in Sitai Salon at Risiya situated 4 miles away from the place of occurrence and he has not seen the major part of dacoity. Similarly Devesh Kumar (Pw-4) was a student and studying in Bahraich in those days. Further, Budh Sagar (Pw-2) did not support the prosecution story in cross-examination and specifically stated that he had not seen the occurrence as he was not present at the time and place of occurrence . In our opinion, the finding of the trial Court , disbelieving the presence of (Pw-2) Budh Sagar, (Pw-3) Tula Ram, (Pw-4) Devesh Kumar at the place of occurrence, further finds support as their presence has neither been mentioned in the FIR (Ext. Ka-1) nor stated by Awadh Ram (Pw-1). 29. Admittedly the alleged dacoity was caused in the dark night at about 00.30 A.M. by unknown persons. Awadh Ram (Pw-1), in his examination in chief, has specifically admitted that he did not know any dacoit either by his name or by face earlier to the occurrence. He had, for the first time, seen them in the light of burning Jhakhar and 5(five) torches. He further admitted that he was also carrying torch at the time of occurrence. Record shows that during trial no torch was produced before the trial Court either during the examination of eye-witnesses or during examination of Investigating Officer S.I. Sukh Sagar Singh (Pw-7) and S.I. Rana Pratap Singh (Pw-9) because S.I. Sukh Sagar Singh (Pw-7) has proved only the recovery memos of torches, lantern, Sandles, empty cartridges, plain and blood stained earth as Ext. Ka-19 to Ext. Ka-25. Now question arises as to whether there was sufficient light at the place of occurrence wherein the respondents-dacoits could have been identified by the prosecution witnesses. Ka-19 to Ext. Ka-25. Now question arises as to whether there was sufficient light at the place of occurrence wherein the respondents-dacoits could have been identified by the prosecution witnesses. Non-production of torches and lantern before the trial Court without any justification creates further doubt in the prosecution story that respondents were seen and identified by the prosecution witnesses in the light of torches because the trial Court had no occasion to verify the existence of torches at the time of occurrence as well as its’ working condition. This doubt further strengthened due to non-production of Munna, Pahalwan, Ashok Kumar, Ram Adhar, Daya Ram and Ram Autar who, as per FIR, appeared at the place of occurrence with torches. 30. In addition to above, according to the prosecution, the respondents were also seen and identified in the light of Jhakhar of Bhagwandin, burnt by one Ashok Kumar. In site-plan (Ext. Ka-18), said Jhakhar was situated behind the western side of the Ghari (animal yard) of Bhagwandin whereas the alleged occurrence was happened in the house of Awadh Ram (Pw-1) and marked as “X-1” which is situated towards south-east to the said Jhakhar and between the place of occurrence and said Jhakhar, houses of Avatar Kahar, Gokul Kahar, Bhagwandin are situated and one Babul tree was also situated nearby the said Jhakhar. Awadh Ram (Pw-1), in his cross-examination, has specifically admitted that it was a rainy season at the time of occurrence, although it was not rained for so many days. He further admitted that the said Jhakhar was containing 10-15 bundles (Bojha) and by the burning of Jhakhar the Babul tree was not scorched. Admittedly, dacoits were 18-20 in numbers. According to Awadh Ram (Pw-1) the dacoits had been remained at the place of occurrence only for half-an-hour. It can not be supposed that they were standing at any particular place. Since it was rainy season, the Babul tree, standing nearby the said Jhakhar, was not scorched and said Jhakhar was situated towards western side of the house of Bhawandin and it was situated at considerable distance from the place of occurrence, the prosecution version that the said Jhakhar had emitted sufficient light wherein the dacoits were identified by the prosecution witnesses is doubtful. This conclusion further gets strengthen as the prosecution has failed to produce Ashok Kumar who had burnt the said Jhakhar and Bhagwandin, owner of the said Jhakhar, who could state whether or not the said Jhakhar was burnt at the time of dacoity to identify the dacoits. 31. So for as the submission of learned AGA that finding of trial Court that the respondents were shown to the prosecution witnesses prior to TIP, is not just because no such plea was taken by respondents before trial Court, is concerned, record shows specific suggestion had been put by counsel of respondents during trial to prosecution witnesses that respondents were shown to them by police and their photographs were also taken in police station. In addition to above respondents, in their statement u/s 313 of the Code while denying the prosecution evidence, had also taken the aforesaid plea. Thus the aforesaid submission of Ld. AGA has no force. 32. It is also pertinent to point out at this juncture that according to prosecution, in this occurrence dacoity was committed in three houses wherein huge money and ornaments were looted by dacoits, armed with deadly weapons, for which thirteen person including respondents were arrested within 10 days of the occurrence and made accused in police report u/s 173(2) of the Code but neither any weapon, used in committing the said dacoity nor any looted property was recovered from possession of any respondents. Prosecution case is silent on the point of any effort made by police for recovery of such weapons and looted property. Silence of prosecution on such vital piece of evidence is also fatal to the prosecution. 33. As discussed herein above, most of the witnesses named in the FIR i.e. Munna, Pahalwan, Ashok Kumar, Ram Adhar, and Daya Ram carrying torches at the time of occurrence and the witnesses Autar, Maya Ram and Chhote Lal, whose houses were also looted, have not been produced by the prosecution whereas Budh Sagar (Pw-2), Tula Ram (Pw-3) and Devesh Kumar (Pw-4) whose presence have been found as doubtful as discussed herein above, have been produced by the prosecution. TIP of respondents were held in District Jail Bahraich. TIP of respondents were held in District Jail Bahraich. Nine person namely Awadh Ram (Pw1) Amerika, Pahalwan, Budh Sagar (Pw-2), Ram Adhar, Ram Avatar, Tula Ram(Pw-3) Devesh (Pw-4) and Faquirey (Pw-5) were produced during investigation to identify the respondents-accused wherein Budh Sagar (Pw2) did not support the prosecution story. Prosecution has neither produced Amerika, Munna, Ashok Kumar, Pahalwan, Ram Adhar and Ram Avatar, before the trial Court nor put any explanation for their non production. It is very amazing fact that Devesh Kumar (Pw-4) whose presence was found suspicious and was not carrying any torch with him at the time of occurrence, had identified all the ten person including respondents who were arrested during investigation as accused of this occurrence. Trial Court disbelieved the 100% identification of this witness (Pw-4). In addition to above, admission of Awadh Ram (Pw-1), that he had come to Bahraich with other witnesses after 13-14 days of the occurrence, had further created doubt in the reliability of evidence of identification and the trial Court found force in the argument of defence counsel that the respondents had been shown to the witnesses prior to TIP and held TIP as shaky and suspicious. In the fact and circumstances as discussed herein above we are also of the view that TIP of respondents is not reliable and finding of the trial Court does not require interference. 34. There is another reason which makes the prosecution case highly doubtful. The prosecution case is based only on the evidence of identification. In FIR no identification marks of any dacoits has been mentioned. Neither Awadh Ram (Pw-1) nor other witnesses have stated that they had seen any particular identification marks on the face of respondents. Awadh Ram (Pw-1), before the trial Court, had identified the respondents Kallan, Piarey, Awadh Ram, Jhabbar, Gaya Prasad and Hari Ram and one accused Tej Bahadur (since deceased). He has further admitted that respondent Jhabbar is black having read bond (Dhaga) on his neck but he had not noticed any bond (Dhaga) on his neck at the time of occurrence. He further admitted that some of dummies standing with respondent Jhabbar at the time of TIP, were white, and some were matching and some were more black than him but he had not noticed even at the time of TIP whether respondent Jhabbar had weared bond (Dhaga) on his neck or not. He further admitted that some of dummies standing with respondent Jhabbar at the time of TIP, were white, and some were matching and some were more black than him but he had not noticed even at the time of TIP whether respondent Jhabbar had weared bond (Dhaga) on his neck or not. This witness (Pw-1) further admitted that Kandhai Pasi (Cw-1) is his co-villager who is elder than him. He further admitted that he could not disclose the description of dress, weared by dacoits and weapons carried by them. This witness (Pw-1) has also admitted that respondent Kallan having small moustache had no beard whereas some of dummies had moustache , some were without moustache or beard, some were white in colour and some were in colour similar to respondent Kallan standing in TIP. Faquirey (Pw-5) in cross-examination admitted that respondent Chhotey is pox-pitted. TIP report (Ext. Ka-34) further shows that some respondents were pox-pitted and each respondents had considerable numbers (5 to 8) specific identification marks including black mole and pox-pit on their face as well as on both sides of their tamples but Achhayver Singh (Pw-14), has not stated that any pox-pitted under trial was mixed in the parade of respondent who was pox-pitted. Ram Achhavar Singh (Pw-14) had only stated that under trial prisoners ,who were lined up with respondents in TIP, were similar in hight, colour and in appearance. Thus it is clear that dummies, lined up with respondents at the time of TIP, were not similar in colour, hight and facial appearance to the respondents. In such fact and circumstances, we are of the view that trial Court rightly dis-believed the prosecution evidence. 35. It is settled principle of criminal jurisprudence that identification of accused by the witnesses before the Court is substantive piece of evidence whereas evidence of TIP is very weak evidence, it has only the corroboratory value and where the offenders were unknown to the witnesses and the prosecution case is based only on the evidence of identification, prosecution has to prove that prosecution witnesses had proper and sufficient opportunity to see and identify the respondents and they had properly seen and identified them . It was dark midnight at the time of occurrence. Evidence, produced by the prosecution, regarding sufficiency of light at the place of occurrence, has been found shaky and doubtful. It was dark midnight at the time of occurrence. Evidence, produced by the prosecution, regarding sufficiency of light at the place of occurrence, has been found shaky and doubtful. As discussed herein above, prosecution witnesses had admitted that they had neither noted the description or special characteristic of any dacoits nor disclosed it in their statement given to investigating officer. They had further admitted that they neither noted the colour of the dacoits nor noted the colour of their clothes. Every person has his specific appearance, characteristic and bodily strength. During examination prosecution witnesses seeing the respondents admitted that some of respondents especially Jhabbar, Chhotey and Kallan had special appearance, identification marks and characteristic. Prosecution has not placed a single justification that if the respondents had special appearance identification marks why the prosecution witnesses had not noted and disclosed it to investigating officer. Neither mentioning specific feature or identification marks or appearance of any dacoits in FIR nor disclosing to investigating officer had further made the evidence of identification shaky and doubtful. 36. In the case of Wakil Singh vs. State of Bihar, AIR. 1981 S.C.1392, where judgment and order of acquittal, passed by trial Court as the evidence of identification was doubtful, was reversed in appeal by the High Court in appeal, Hon’ble Supreme Court, setting aside the judgment of the High Court, has held as under: “2. In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity, nor did the witnesses give any identification marks viz., stature of the accused or whether they were fat or thin or of a fair colour or of black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification could not be excluded. For these reasons, therefore, the trial Court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, apart from the reasons that were given by the trial Court. The High Court, however has chosen to rely on the evidence of a single witness, completely over-looking the facts and circumstances mentioned above. The High Court, however has chosen to rely on the evidence of a single witness, completely over-looking the facts and circumstances mentioned above. The High Court also ignored the fact that the identification was made at the T.I. parade about 3 1/2 months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember, the features of the accused and he is, therefore, very likely to commit mistakes. In these circumstances unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness.”(Emphasis supplied) 37. The object of TIP is to find out whether the suspected offender arrested by police during investigation is real culprit or not. Evidence of TIP can be held as reliable and trustworthy only where the suspects were neither shown to the witnesses nor the witnesses had an opportunity to see them prior to TIP and the proceeding of TIP is not irregular. Thus if evidence of TIP is shaky and doubt due to aforesaid reason, the evidence of identification before the court can not be relied upon. 38. In Shaikh Umar Shaikh and another v. State of Maharashtra AIR 1998 SC, wherein the trial Court, after rejecting the evidence of identification parade on the ground that suspects were shown the witnesses prior to identification parade, relied on the evidence of identification before it and convicted the appellant, Hon’ble Supreme Court while allowing the appeal has held as under: “The Designated Court after having rejected the evidence of identification parade on the ground that the suspects were possible shown to the witnesses, relied upon the evidence of identification of the accused in the Court by the two witnesses and on that evidence recorded conviction against the appellants. No doubt, the evidence of identification parade is not a substantive evidence, but its utility is for purpose of corroboration. In other words, it is utilised for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them. The real and substantive evidence of the identity of the accused comes when witnesses give statement in the Court, identifying the accused. In other words, it is utilised for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them. The real and substantive evidence of the identity of the accused comes when witnesses give statement in the Court, identifying the accused. It is true that in the present case, PW-2 and PW-11 identified the two accused who are the appellants before us in the Court. But, the question arises; what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the identification parade in the police station. The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made basis for recording conviction against the accused. The reliance of evidence of identification of the accused in the Court by PW-2 and PW-11 by the Designated Court, was an erroneous way of dealing with the evidence of identification of the accused in the Court by the two eye-witnesses and had caused failure of justice. Since conviction of the appellants have been recorded by the Designated Court on wholly unreliable evidence, the same deserves to be set aside.” (Emphasis supplied) 39. It is settled principle of law that the accused will be presumed as innocent unless and until the prosecution has succeeded to prove its case beyond reasonable doubt and the presumption of innocence of accused is further strengthened if he is acquitted by the Trial Court after considering the material evidence available on record. In appeal against acquittal the prosecution has to show that gross mistake has been committed by the Trial Court in appreciating the evidence on record or application of settled principle of law. 40. Hon'ble the Apex Court in Surajpal Singh and others Vs. In appeal against acquittal the prosecution has to show that gross mistake has been committed by the Trial Court in appreciating the evidence on record or application of settled principle of law. 40. Hon'ble the Apex Court in Surajpal Singh and others Vs. State of Punjab, AIR 1952 SC 52 held as under : "It is well-established that in an appeal under section 417 of the Criminal Procedure Code, the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well-settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons." (Emphasis supplied). 41. Coming to the facts of this case, in the light of above discussions, we are of the view that the impugned judgment and order passed by trial Court is well reasoned, well discussed and requires no interference. The prosecution has miserably failed to prove its case beyond reasonable doubt and there is no illegality or infirmity in the impugned judgment and order passed by Trial Court in Sessions Trial No.417 of 1979, whereby the respondents-accused were acquitted. The appeal is liable to be dismissed. 42. The judgment and order dated 06.02.1981 passed by trial Court in Sessions Trial No. 417 of 1979 is affirmed. The appeal lacks merit and is dismissed. 43. Copy of this judgment be sent to District Sessions Judge, Bahraich with Lower Court Record for information and compliance.