The reliability of a test identification parade and the sufficiency of evidence to prove the involvement of an accused in a crime beyond a reasonable doubt.

G. S. N. TRIPATHI, J.

( 1 ) THE then Vth Addl. Sessions Judge, Farrukhabad, vide his judgement and orderdated 27-11-79 passed in S. T. No. 3268 of 1974 State v. Mithoo Singh and Jalal Uddin, held the accused Mithoo Singh and Jalal Uddin guilty on a charge under Section 395, I. P. C. and sentenced them to undergo 5 years R. I.

( 2 ) THE prosecution case started on the basis of the F. I. R. lodged by Vishwa Nath Singh, P. W. 1 at the police station Talgram on 16-6-72 at 7. 15 A. M, The distance of the police station is about 4 miles from the place of occurrence. The incident is said to have taken place on 15/16-6-72 around midnight.

( 3 ) THE complainant has alleged that he was sleeping in his house. A lantern was burning in the Angan of his house. Around midnight, about 14-15 dacoits entered his house and they caught hold of the complainant and his wife. They were compelled to sit inside the courtyard. Their movements were being watched by 3-4 dacoits. The remaining dacoits also came inside the courtyard and they started threatening the complainant and his wife. They were flashing their torches as well. They were constantly on move, going inside and outside. Four of them had guns. Others had lathis, dandas, spears etc. After hearing the alarm, P. W. 2 Harbans Singh, P. W. 4 Shiv Pal and others arrived there. The phoos kept at a distance, was burnt. That gave abundant light. The witnesses had also torches and they were flashing them. The dacoits were of different size. After completing dacoity, they retreated. Thereafter the F. I. R. contains a list of the properties looted.

( 4 ) DURING the course of investigation, the I. O. reached the spot, prepared the site-plan, inspected the torches and lantern and prepared the memos for them. On different dates the accused were arrested. They were put up for test identification parade. They were identified by witnesses Harbans Singh P. W. 2, and Shiv Pal, P. W. 4. Vishwanath Singh, P. W. 1 also identified the dacoits. After concluding the investigation the I. O. submitted the charge sheet against the accused.

( 5 ) THE prosecution examined P. W. 1 Vishwanath Singh. He has narrated the prosecution story as contained in the F. I. R. He also identified the accused in the Court.

( 6 ) HARBANS Singh P. W. 2 and Shiv Pal, P. W. 4 had given evidence in the same vein.

( 7 ) P. W. 3 Genda Lal had burnt the phoos.

( 8 ) P. W. 5 Sri Roshan Lal Verma is the Investigating Officer.

( 9 ) OTHER documents on the record were admitted by the learned counsel for the accused. Therefore formal evidence was not led.

( 10 ) THE accused in their statements under Section 313, Cr. P. C. have said that they were known to the witnesses from before and they were not involved in the dacoity. They have led no evidence in their defence.

( 11 ) AFTER perusal of the entire evidence and circumstances on the record, the learned lower Court concluded that the prosecution had proved its case beyond a shadow of reasonable doubt against the accused. He accordingly sentenced them as noted above.

( 12 ) FEELING aggrieved, the accused appellants have preferred this appeal.

( 13 ) I have heard learned counsel for the parties at stretch and gone through the record. I find that this appeal has got much force and it deserves to be allowed.

( 14 ) THE factum that the dacoity was committed in the house of Vishwa Nath Singh on 15/16-6-72 is not disputed. The dacoits were armed with firearms and various other weapons, which they used during the course of dacoity. As many as three persons received firearm injuries on their persons on the firing resorted to by the dacoits. Learned counsel for the accused has not challenged the factum of dacoity and the finding on the point arrived at by the learned lower Court.

( 15 ) THE main question for consideration is as to whether the prosecution has proved involvement of these accused in this case. For that, the learned lower Court has given a chart at page 4 of his judgement. The performance of Vishw

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