Evidence of identification at a test identification parade is not substantive evidence and can only be used for corroboration or contradiction. Failure to identify an accused in court renders the evidence of identification at the test identification parade inadmissible.

Sarjoo Prasad, J.

1. In this appeal, the two appellants have been convicted under Sec.395, Penal Code, and sentenced each to seven years rigorous imprisonment. The case is one of highway robbery in which the appellants along with several other persons are said to have taken part and assaulted two persons, one of them rather severely, removed the goods and properties in their possession.

2. The prosecution story is that on the night of the occurrence, that is, on 6th April 1949 in the early hours of morning, the complainant Baburam Singh, along with his grand, daughter Padmavati, a girl of about 11 or 12 years his Until, Sundar Singh, and a servant, Kesho Kahar, were proceeding from village Onwa to Barbigha to catch a bus there in order to go to railway station Shekhpura for the purpose of entraining for Gaya. This was, as I said, at about 4 A. M. in the morning. The barahil and the servant were carrying luggages, and the barahil had also a lantern in his hand. When they reached a pyne near Barbigha and were proceeding towards the north of the pyne, some brick-bats were thrown at the party, one of which bit the girl Padmavati. This was followed by a number of persons waylaying the complainant and his party. The dacoits assaulted Kesho, who fled away. Baburam himself took to fight, and Sundar, the barahil, who had a lantern in his band, was hit with lathis and bhalas. He in fact received a severe bhala injury between his thigh and abdomen. He fell down unconscious, and the lantern slipped out of his band and fell, the kerosene oil being spilt on the ground which caught fire and blazed up. In the light of the lantern, the blaze of oil and the flash of torches, the dacoits are said to have been identified. Baburam, the complainant, fled to the police station where be was soon joined by the servant. Kesho Kahar, who is P.W. 3 in the case, and there a first information was lodged at about 6 A. M., the place of occurrence being two miles from the police station. The girl, Padmavati, who is P. W. 2 in the case, and Sundar Singh, P. W. 4 were left behind at the place of the occurrence. Constables were accordingly sent to the spot who brought the girl and the injured Sundar Singh with the broken lantern. The police then started investigation, and in course of the investigation, they obtained some clues from the villagers leading to the arrest of the appellants on 7th April 1949.

3. There can be no doubt that the occurrence has been adequately proved. The only question is about the identification of the appellants as being amongst the dacoits. The eyewitnesses to the occurrence are the complainant (P. W. 1), his granddaughter (P. W. 2), the servant Kesho Kahar (P. W. 3), who received injuries, and the barahil Sundar Singh (P. W. 4), who had rather a serious injury in his abdomen. There are two village witnesses, P. Ws. 5 and 6, who deposed that at dawn they noticed the appellants along with eight other persons coming from the opposite direction. The party of the appellants was armed with lathis and bhalas. As the witnesses found the party of the appellants coming in such a manner, which was rather unusual, they enquired as to where the party was coming from and were told that they were returning from Barbigha after seeing tamasha of Mahabir Ji Puja. As this was immediately after the occurrence, the evidence has been considered of some value by the learned Sessions Judge. I may here state that the test identification was held almost within a week of the occurrence, that is on 13th April 1949, and, therefore, the test identification is of great value. The identification of the appellant Rama Gope rests upon the evidence of the complainant, P. W. 1, who identified him at the test identification parade. It is, however, curious that the complainant could not identify him before the committing Magistrate on 25th November 1949. In his evidence, the complainant explains it by saying:

"It is just possible that I have missed to identify so