Identification evidence in a criminal case must be reliable and free from any doubt or suspicion. The Magistrate conducting the identification parade must take proper precautions to prevent mistaken identification, including recording the distinctive marks of accused persons and taking steps to prevent the mixing of under trials with similar physical characteristics.

( 1 ) THE two appeals have been preferred against the judgment and order dated 4-8-1981 passed by Sri D. C. Srivastava, the then Additional Sessions Judge, Gyanpur, Varanasi in S. T. No. 94 of 1977, State v. Vijay Narain whereby he convicted all the five accused-appellants of the Offence under Section 395, I. P. C. and sentenced each of them to undergo rigorous imprisonment for a period of five years. One Ram Lal co-accused was acquitted by the learned Additional Sessions Judge and the State has not challenged his acquittal by way of filing an appeal.

( 2 ) OUT of the above five accused appellants, Mohan accused-appellant (Criminal Appeal No. 1737 of 1981) was in custody at the time of his trial and after conviction he had already served out his sentence and the statement of his counsel Sri D. S. Tewari is that after being released from jail, he met his natural death. So now we have to deal with the cases as against Tulsi and Shitla Prasad accused appellant of Criminal Appeal No. 1737 of 1981 and Vijay Narain and Ravindra Nath accusued-appellants of Criminal Appeal No. 1760 of 1981.

( 3 ) IT is a case of dacoity. The factum of dacoity is not controverted before this Court. The dacoity took place in the night of 24th/25th Dec. 1976 at 1. 30 Oclock in the houses of Surendra Nath, Raj Narain, Ramraj Dubey Girja Shankar, Radhey Shyam and Prabhu Narain in Village Arjunpur, Police Station Suriyawan, distict Varanasi (now district Bhadohi ). According to the prosecution case, Ravindra Nath (PW 2) set fire to a heap of dry sugar cane leaves which emitted light at the time of occurrence, that the witnesses were also flashing their torches and the dacoits were also flashing their torches and in the light of the said fire and the light of torches, the witnesses had idenfified the accused-appellants. No stolen property was recovered during the investigation.

( 4 ) THE identification evidence in this case has been given by Surendra Nath Dubey, informant (PW 1) and Ravindra Nath Dubey (PW 1) an outsider, who is said to have set fire to dry sugar cane leaves as well as Balkeshwar Nath (PW 4) who is said to be present at the house of informant Surendra Nath Dubey at the time of occurrence and injured in the dacoity. The accused-appellants were arrested and put up for test identification in this case. The test identification parade was conducted by Sri Satya Prakash Bajpayee Land Acquisition Officer Gyanpur (PW 9 ). The accused persons denied the charge of dacoity and have claimed their false implication. Some defence evidence was also led at the trial.

( 5 ) NOW the identification evidence given by the eye witnesses at the trial has been assailed by the learned counsel for the accused-appellants Tulsi and Shitla Prasad on the ground that at the time of their admission to jail on 2-3-1977, each one of them had only one leg existing and that despite it, at the time of holding of test identification proceedings the learned Executive Magistrate did not take any proper precautions in regard to the said distinctive mark and that consequently the identification proceedings were a farce. There is the evidence of Banwari Yadav, Gate Keeper, Sadar Jail, Gyanpur (PW 3 ). In his examination-in-Chief, he stated that he has brought the gate book of the Gyanpur jail and on the basis of entry made in it on 2-3-1977, he testified to the going of accused Tulsi, Shitla Prasad and Babul alias Bulli to the Sadar Hospital and their return therefrom. He also testified that one leg of each of the accused was amputated. The prosecution has not challenged the testimony of this witness Banwari Yadav (DW 3) based on the jail records. The identification memo prepared by the learned Magistrate which is on record, does not contain any entry about one leg of any of these accused appellants being in an amputated condition, what to say of recording the taking of special precautions to conceal these distinctive features of these accused appellants. Only, the u