P.N.GOEL,J. - (1.)- Naresh, appellant, resident of village Jalalpur, Police Sta­tion Bisauli, district Budaun, has been convicted under Section 395, I.P.C. and sentenced to undergo R.I. for 5 years for having participated in a dacoity committed by a gang of about a dozen bad characters in the houses of Ram Prakash (P.W. 3) and Ram Swarup, father of Maharaj Singh ,(P.W. 2) in village Karanpur within police station Bisauli, district Budaun on the night intervening January 11 and 12, 1973 at about 10-11 P.M.
(2.)THE appellant was arrested on April 5, 1973 by Adya Prasad Tiwari S.I. (P. W. 8) from his village and taken to po­lice station Bisauli. From police station Bisauli, Dalchand constable escorted the appellant on that day to District Jail Budaun. On May 31, 1973, the appel­lant was put up for test identification. The identification proceed­ing was conducted by Sri N. N. Varma, Magistrate (P.W. 6). The ap­pellant was identified by Shyam Lal (P. W. 1), father of Ram Ptrakash, Maharaj Singh and Ram Prakash. There was a lantern burning at the verandah inside the house of Ram Prakash. Shyam Lal (P.W. 1) was sleeping in the verandah. He was, therefore, able to see the dacoits very well. Ram Prakash ran out of his house and Maharaj Singh also ran from his house. They stood in a narrow street to the west of the house of Brij-pal which is to the south of the house of Shyam Lal and Ram Prakash, with a narrow street in between and to the south each of the house of Ram Swarup. The house of Ram Swarup is to the west of the house of Ram Prakash. Some open land is between these two houses. The house of Ram Prakash faces east. After having committed dacoity in the house of Ram Prakash, the dacoits went towards south and then towards west through the street which is between the houses of Ram Prakash and Brijpal and thereby reached the house of Ram Swarup and after having committed dacoity in the house of Ram Swarup, the bad character bolted away towards north. The light of lantern which was burning inside the house of Ram Prakash was not available to Ma­haraj Singh and Ram Prakash. At the place where Ram Prakash and Maharaj Singh were standing at the time of da­coity, there were other village people. These village people had two torches, one was with Maharaj Singh and the other with Hira Lal. At the north­eastern corner of the house of Brijpal some straw was burnt. According to Maharaj Singh and Ram Prakash they saw the dacoits in the light of torches and the fire of burning straw. It is ob­vious that Maharaj Singh and Ram Pra­kash could not see the dacoits when; they were committing dacoity in the house of Ram Swarup and when they were bolting away from the house of Ram Swarup towards north.
The III Additional Sessions Judge, Budaun who tried the case did not ac­cept the identification of Shyam Lal. On the date on which the appellant was put up for test identification three other suspects were also put up. Shyam Lal picked up three persons correctly and committed one mistake. On this ground the Additional Sessions Judge did not accept his (testimony. The Additional Sessions Judge, however, believed the evidence of Maharaj Singh and Ram Prakash and convicted the appellant.

(3.)AT the out-set it has to be remark­ed that the learned Additional Sessions Judge was not justified in not accepting the identification of the appellant by Shyam Lal. His performance was 75 per cent, correct. This performance on the very face is a good one. It is not expected that a witness should be able to identify all the suspects and then only his identification could be characterised as good.