The evidence of identification must be conclusive and supported by proper procedures, and weaknesses in the prosecution's case can lead to acquittal.

1. - The appellant Hazari has been convicted by the learned Additional Sessions Judge, Alwar, uader section 395 I. P. C. and sentenced to rigorous imprisonment for three years and a fine of Rs. 500/- or in default further rigorous imprisonment for six months.

2. The case of the prosecution which resulted in the conviction and sentence of the appellant as aforementioned was originally registered with the police station Partapgarh under section 379 I. P. C. PW 1 Gopi, lodged the F. I. R. Ex. P. 1 reported that on January 19, 1974 in the Pahar area of village Silibaori some persons belonging to the said village were grazing cows and other animals. At about 12 noon they noticed that four persons were trying to steel their cows and take them away. The cow-herds shouted for help. Hearing their cries a number of persons from village Silibaori arrived there. They went up the Pahar and succeeded in catching hold of the culprits. These two were subsequently found lying dead at the Pahar. Two of the culprits escaped.

3. Shri Ram Verma Station House Officer Pratapgarh arrested the culprits including Hazari on January 24, 1974. He admittedly kept them in police custody till January 31, 1973. They were put up for test identification on February 4, 1974. It is alleged that a number of witnesses identified the culprits including Hazari before the Magistrate on February 5, 1974. It was only on the basis of the evidence consisting of identification of Hazari by few witnesses that the learned trial Judge found him guilty of the charge under section 395 I. P. C. and sentenced him as stated above.

4. Hazari has submitted a petition of appeal through the Jail authorities. Shri S. K. Keshote, Advocate, has urged the pleas in defence as counsel amicus curiae.

5. After hearing both sides and going through the record, I am of opinion that the evidence of identification of Hazari during the trial and earlier in the course of test identification held by the Magistrate is not, in the facts of this case enough to connect him with the crime. It will be seen that the Investigating Officer kept Hazari in his custody for 8 days before he sent him to the judicial lock-up for test identification. It has not been explained as to why Hazari was not sent to the official lock-up immediately after his arrest if the test identification had to be arranged to enable the witnesses to try and identify the culprits in a test identification.

6. The learned Magistrate, who held the test identification does not seem to have observed all the necessary precautions which are advised by the superior courts from time to time. The memo Ex. P. 3 prepared by the learnd Magistrate as a result of the test identification held by him does not mention the date of arrest of Hazari by the police and the date of his dispatch to the judicial lock-up. This would show that the learned Magistrate did not satisfy himself that Hazari had not been shown to the witnesses before he was put for test identification. The learned Magistrate has not mentioned the names and addresses etc. of the persons who participated in the test identification and among whom the appellant was mixed up for the purpose. This would show how perfunctory the proceeding of test identification were.

7. One of the prosecution witnesses, namely, PW 3 Kanhaiya, who has been produced as an eye witness has testified that the culprits were having their faces covered with Dhathas and that he could not therefore see the face of anyone of them. He further stated that the appellant Hazari was not among the said culprits.

8. The prosecution case suffers from yet another weakness. It will be recalled that according to the F. I. R. the total number of the culprits that were seen by the villagers that evening was four out of whom two were captured at the spot and killed by the villagers. This means that only two of the culprits had escaped that evening. If some one fails to understand how the Investigating Officer could put up as many as