JUDGMENT : R.P. Soni, J. 1. This appeal is directed against the judgment and order dated 16.05.1994 rendered by the Special Judge, SC/ST (Prevention of Atrocities) Act, Jodhpur in Sessions Case No. 75/1990 & 78/1990 acquitting the respondents-accused for the offences punishable under Sections 396, 460, 302 or 302/149 of the Indian Penal Code. All the accused were charged and tried for allegedly committing murder of Igya Ram in the mid-night of 13.09.1984 and 14.09.1984 by shooting him in furtherance of their common object. 2. The facts necessary to be noticed for disposal of present appeal against acquittal, briefly stated are that on 14.09.1984 at about 5:20 in the early morning, complainant Ramvilas (PW-2) lodged a report (Ex.P-1) at Police Station Osian, District Jodhpur stating, inter alia, that he along with his brothers resides in Punasar village and conducts business there. In mid-night of 13.09.1984 and 14.09.1984 at around 10:30 pm, after having dinner, they slept in the court-yard. Their driver Ranjeet Singh and one Birma Ram Jat were also sleeping besides them. At around 12:30 in the night, three persons entered into the court-yard having pistols and guns. They threatened him and demanded to lead them into the house to reveal the valuables. Subsequently, they forcibly pushed all the three brothers inside the house, firing gun shot on the ground and menacingly threatening to shot them as well. The fourth person stood outside the house with a gun while one or two persons positioned themselves on the roof firing continuously. They compelled entire family to gather into the chowk of the house and instructed them to unlock the room. 3. The FIR further stated that complainant unlock the room allowing accused to enter. They inquired about the safe (Tijori). In response, brother of the complainant, Igya Ram stated that they did not possess a safe; whatever valuables they possess were in that very room. Meanwhile one of the accused fired a gun-shot at Igya Ram causing him to collapse on the ground. The trio proceeded to search for valuables inside the room, while the other accused positioned at the terrace continued firing. Half an hour later, accused returned to the chowk of the house after bundling the valuables in 2-3 bundles and demanded keys of the shop. They also looted their shop and while leaving, they shoot at a vehicle parked near the house puncturing one of its tyres. Half an hour later, accused returned to the chowk of the house after bundling the valuables in 2-3 bundles and demanded keys of the shop. They also looted their shop and while leaving, they shoot at a vehicle parked near the house puncturing one of its tyres. 4. It is further stated that when the complainant and his family members raised an alarm, accused threatened to kill them. The faces of all the accused were covered with cloths. They were speaking Marwari and Hindi language and are of age between 20 to 30 years. He can recognize the accused in future. Thereafter, villagers came to the place of occurrence. Igya Ram was shot at his hip. He was also taken to the Police Station. 5. In pursuance to the said complaint, investigation was set in motion and the charge-sheet was filed against all the accused-respondents. After the case was committed to the Court of Sessions, the charges for the offences punishable under Sections 396, 460, 302 or 302/149 of the Indian Penal Code were framed against the accused-respondents to which, they did not plead guilty and claimed trial. 6. To bring home the guilt of the respondents, prosecution examined as many as 31 witnesses and also got exhibited 33 different documents. Upon being confronted with the allegations set-out in the evidence of the prosecution witnesses, respondents denied all the incriminating circumstances put to them and claimed that they had been falsely implicated and are innocent. The defence propounded by the respondents in the course of trial was of total denial. No oral evidence was produced by the respondents in their defence but 5 different documents were exhibited. 7. During the trial, accused Raghuveer Singh was declared abscond by the trial Court. Hence, this appeal relates to the accused - Punam Das, Chhabila, Jogendra Singh and Birbal Ram. 8. The trial Court, after consideration of entire evidence on record, has acquitted all the four respondents holding that prosecution has not been able to establish the identity of the accused and the evidence produced by the prosecution was not sufficient to prove the charges levelled against the respondents beyond reasonable doubt. 9. Learned Public Prosecutor Mr. B. R. Bishnoi, appearing for the State has argued that findings arrived at by the learned trial Court are palpably wrong and against the evidence on record. 9. Learned Public Prosecutor Mr. B. R. Bishnoi, appearing for the State has argued that findings arrived at by the learned trial Court are palpably wrong and against the evidence on record. He has assailed the impugned judgment of the learned trial Court on the ground that vide different test identification parade memos (Ex.P/11, P/12, P/13 and P/19), respondents Chhabila, Birbal Ram and Jogendra Singh were identified, which has been proved by Rampal (PW-1) and Ramvilas (PW-2), who were eye-witnesses. On that basis, the respondents ought to have been convicted. 10. On the other hand, Mr. Rajiv Bishnoi, learned Amicus Curiae, appearing on behalf of the respondents urged that merely because of re-appraisal of the evidence, the other view of the matter than taken by the learned trial Court can be legitimately arrived at, would not be sufficient ground to interfere with an order of acquittal, unless this Court reaches the conclusion that the entire approach of the learned trial Court in appreciating the evidence was patently illegal, erroneous or unsustainable; and that if, on re-appraisal of the evidence, only one view is possible then alone, this Court will exercise the jurisdiction in appeal and can convict the acquitted respondents. It is further submitted that on consideration of the evidence on record, the learned trial Court has rightly reached to the conclusion that the prosecution has failed to prove the identity of the accused. The case was not proved beyond reasonable doubt as to involvement of the respondents in commission of the alleged crime. 11. Arguments advanced by the learned Public Prosecutor appearing for the State as well as learned Amicus Curiae were heard at length and the record of the case was also perused. 12. The most crucial aspect of the case is identification of the accused-respondents. 13. According to the case of the prosecution, at the time of incident, deceased Igya Ram, Ramvilas, Mrs. Sohani, Murlidhar, Rampal, Mrs. Ichuki, Shankerlal and Birma Ram were sleeping at different places of their house, i.e., outside, inside and on the roof. All of them woke up when the respondents attacked. The alleged incident took place before these family members. The trial Court did not rely on the evidence of all the above witnesses. 14. Mrs. Sohani (PW-5), Mrs. Ichuki (PW-9), Mrs. Ichuki, Shankerlal and Birma Ram were sleeping at different places of their house, i.e., outside, inside and on the roof. All of them woke up when the respondents attacked. The alleged incident took place before these family members. The trial Court did not rely on the evidence of all the above witnesses. 14. Mrs. Sohani (PW-5), Mrs. Ichuki (PW-9), Mrs. Shanti (PW-10) and Birma Ram (PW-24) have made clear in their deposition that they could not identify any of the respondents at the time of incident; all the respondents had their faces covered with the cloths and they could not recognized them even after seeing them in the Court. 15. Although, Shankerlal (PW-17) has identified one of the accused Jogendra Singh in the Court but has also deposed that the faces of the accused were covered with the cloths. The evidence of Shankerlal (PW-17) holds no importance, specially considering that no test identification parade of any accused was conducted with him during the course of investigation. Same is the position with Murlidhar (PW-21). Murlidhar has identified the accused Birbal Ram, Punam Das, Chhabila and Jogendra Singh by their names in the Court but he has also admitted that he has seen them in the Court for the first time. Admittedly, no test identification parade of any accused was conducted with Murlidhar also during the course of investigation nor these two witnesses narrated the names of the accused in their statement recorded under Section 161 of the Cr.P.C. (Ex. D/5). 16. Shankerlal (PW-17) and Murlidhar (PW-21) have identified some of the accused for the first time in the Court itself. In such a situation, their identification is of no importance in the eye of law and there was no basis to rely on the statements of these witnesses. Hence, their evidence need not detain us. 17. Ramvilas (PW-2) is complainant-cum-eye witness and brother of the deceased Igya Ram. He claimed in his examination-in-chief that:- “faces of all the accused were covered with the cloths; today, I can recognize accused by their face; Chhabila, Birbal Ram and Punam Das were recognized by him in the Court during recording of his statement. After touching and indicating accused Birbal Ram, he deposed that he fired a gun-shot. During the conversation, all the accused were taking each others names, who were calling each other as Birbal Ram, Chhabila, Punam Das, Raghuveer and Jogendra Singh.” 18. After touching and indicating accused Birbal Ram, he deposed that he fired a gun-shot. During the conversation, all the accused were taking each others names, who were calling each other as Birbal Ram, Chhabila, Punam Das, Raghuveer and Jogendra Singh.” 18. Other important witness is Rampal (PW-1), who is also brother of the deceased Igya Ram. He deposed that:- “faces of all the accused were covered with the cloths; only their eyes and hair were visible; I identified the accused by their eyes and hair. According to him, all the four accused present in the Court were the perpetrators of the crime; I had heard their names from their conversation; it was a moonlit night and lantern was also burning in the house.” 19. Analysis of above oral evidence reveals that it is admitted fact that none of the witnesses had seen the accused before the incident or recognized them. Assuming that eyes and nose could be seen to some extent despite wearing of the mask, the question is whether any of the crucial witnesses could have identified the unknown alleged dacoits. 20. From our perspective, the evidence of Ramvilas and Rampal is not credible. In the present case, it is not proved whether it was a moonlit night or there was any light from the lantern. No lantern is shown in the site-plan. Identifying masked accused, solely by their eyes and hair in the darkness of mid-night is not possible, especially if the lighting conditions are extremely poor. Even with moon light or lantern light, it might not be enough to discern the facial features. When the accused had covered their faces with the cloths, it might obscure their hair as well. Eyes and hair are often not enough to definitely recognize four accused at a time. Such identification cannot be reliable. 21. The version of Ramvilas (PW-2) is belied by his own statement in the cross-examination. If Ramvilas had heard the accused calling each others by names, then it would definitely have been mentioned in his statement under Section 161 of the Cr.P.C (Ex.D/2) and also in the First Information Report (Ex.P/1). On the contrary, all the three Investigating Officers namely Moti Singh (PW-18), Avtar Singh (PW-28) and Dheera Ram (PW-30) have admitted in their cross-examination that names of the accused were not revealed till the time, the investigation was with them. On the contrary, all the three Investigating Officers namely Moti Singh (PW-18), Avtar Singh (PW-28) and Dheera Ram (PW-30) have admitted in their cross-examination that names of the accused were not revealed till the time, the investigation was with them. As a result, the theory of the prosecution that the witnesses Ramvilas and Rampal saw and identified the accused at the scene of occurrence completely fails. 22. The record reveals that the different dates, on which the respective accused came to be arrested and the date of their test identification parade are as follows:- Name of accused Date of Arrest Date of T. I. Parade Punam Das 06.05.1986 Not conducted Chhabila 12.07.1987 27.07.1987 Jogendra Singh Memo not exhibited 05.02.1988 Birbal Ram 28.01.1990 05.02.1990 23. The above dates are important because the prosecution was obliged to hold the test identification parade, in respect of each of the accused, soon after their arrest. In the first place, the Investigating Officer has not deposed that he preferred to defer holding of test identification parade of any arrested accused for any reason. There is no explanation whatsoever as to what prevented the Investigating Officer to ensure that test identification parade is held soon after arrest. 24. As mentioned earlier, the Investigating Officers have not given any justification as to why the test identification parade was held after such a long time. All that they have mentioned in the examination-in-chief is that, “test identification parade of the arrested accused was conducted.” In other words, there is no legal evidence explaining the circumstances which prevented the Investigating Officer from holding of test identification parade soon after the arrest of respective accused. Therefore, there was a room for doubt as to whether the delay in holding test identification parade was in order to enable Ramvilas and Rampal to see the accused in the police station or in the jail premises and make a note of their features. 25. There remains the fact that a sufficiently long interval of time had elapsed between the date of the occurrence when the eye-witnesses have seen the accused for a few minutes and the date of test identification parade. 25. There remains the fact that a sufficiently long interval of time had elapsed between the date of the occurrence when the eye-witnesses have seen the accused for a few minutes and the date of test identification parade. It is, no doubt, true that both Ramvilas and Rampal have correctly identified the respondents Chhabila and Jogendra Singh but it has to be borne in mind that nearly 3 to 5 years had elapsed from the date of incident by that time; the incident took place in the darkness of mid-night and importantly the accused had covered their faces with the cloths. 26. It is also note-worthy to mention that Rampal has confirmed in his statement that, “he had seen the accused at Osian Police Station prior to the test identification parade”. It is also admitted by him that his brother Ramvilas also saw all the accused along with him at Osian Police Station. It is further admitted that the SHO said to them that he had arrested and brought these persons. 27. Above position of deposition confirms the fact that the Police had shown the accused Chhabila, Birbal Ram and Jogendra Singh to the eye-witnesses Ramvilas and Rampal even prior to holding of the test identification parade and as such depending upon such evidence for identification, could be perilous, without other incriminating evidence against the respondents. 28. Therefore, it would be highly unsafe to place reliance on such identification of the accused by the eye-witnesses Rampal and Ramvilas. In our considered view, the test identification parades as held were vitiated and there was no legal evidence to indicate the complicity of the respondents in relation to the alleged offences. As the factum of valid test identification parade has not been established by the prosecution, therefore, the prosecution case against the respondents falls to the ground. 29. It is also noticed that the chance prints of the accused were also taken by the experts from the scene of occurrence but no result report has been produced in evidence which could link any of the respondents with the incident or could prove their presence at the place of occurrence. 30. No jewellery or valuable utensils have been recovered from any of the respondent. The recovery memo (Ex. P/10) relates to the co-accused Raghuveer Singh, who is not a party to the present appeal and trial against him is still unconcluded. 30. No jewellery or valuable utensils have been recovered from any of the respondent. The recovery memo (Ex. P/10) relates to the co-accused Raghuveer Singh, who is not a party to the present appeal and trial against him is still unconcluded. In so far as, recovery of empty shells, gun etc. are concerned, these recoveries by itself is not sufficient to connect the respondents with the alleged murder of Igya Ram when the substantive evidence has not been found reliable and truthful. 31. In view of all, as discussed hereinabove, if the learned trial Judge did not believe the identification of the respondents, there appears no error in the approach of the trial Judge. It is immaterial that the postmortem report of the deceased Igya Ram has been proved, unless it is proved that Igya Ram was murdered by the respondents in furtherance of their common object of unlawful assembly constituted by them. 32. After going through the material available on record, we do not find any reason to disagree with the view taken by the learned trial Court. The learned trial Court has rightly found that the prosecution could not establish that respondents committed the alleged offences. The order of acquittal has to be maintained. 33. In view of the above discussion, we do not find any perversity or even improbability in the findings and conclusion of the learned trial Court, the same appears to be cogent and reasonable. Therefore, the appeal filed by the State is devoid of any merit which deserves dismissal. 34. As a result, the instant appeal fails and is hereby dismissed. The respondents are on bail, their bail bonds are discharged. 35. The appeal dismissed accordingly.