JUDGMENT Asthana, J. - These two appeals arise out of one and the same judgment of the learned Sessions Judge of Kanpur. Appeal No. 1310 of 1952 which is a represented appeal and has been filed by three persons, viz. Rampal, Soney Lal and Misri Lal is against their conviction and sentence of seven years' rigorous imprisonment each u/s 395, I.P.C. wheresas Appeal No. 57 of 1953 is from jail by five persons viz. Chhail Bihari, Bijai Bahadur, Ratipal, Jharwa and Sobhnath the first two of whom have been convicted and sentenced to 10 years' rigorous imprisonment each and the remaining three to seven' years' rigorous imprisonment each under the aforesaid section. 2. It appears that an armed decoity was committed on the night between the 4th and 5th August, 1951, at the house of one Sheo Ratan Mukhia of village Bachhaupur, P.S. Sachendi, district Kanpur. The report of the dacoity was made the next morning at 6.10 a.m. by Ram Das, nephew of Sheo Ratan, who lives at a distance of one house from that of Sheo Ratan at police station Sachendi which is at a distance of five miles from village Bachhaupur. It was mentioned in this report that the dacoity (sic) as committed by 13 or 14 persons whose names and addresses were no known and that the facts of the dacoits were seen in the light of the lantern, Dia and torches and they could be identified if they were seen. After the report the Station Officer of P.S. Sachendi went to the place occurrence and there a list of the looted property was handed over to him by Sheo Ratan. After the necessary investigation eleven persons were sent up for trial. The learned Sessions Judge after considering the entire evidence was of the opinion that the case was not proved against three of them, namely, Chandra Bhushan, Lala and Thakur Din. He, therefore, gave them the benefit of doubt and acquitted them. He however, found that the case against the remaining eight accused was satisfactorily proved and he accordingly convicted them u/s 395, I.P.C. He sentenced two of them, viz Bijai Bahadur and Chhail Bihari to ten year's rigorus imprisonment because there was evidence on the record against them that they had taken part in other serious crimes. He however, found that the case against the remaining eight accused was satisfactorily proved and he accordingly convicted them u/s 395, I.P.C. He sentenced two of them, viz Bijai Bahadur and Chhail Bihari to ten year's rigorus imprisonment because there was evidence on the record against them that they had taken part in other serious crimes. The remaining six persons, viz, Rampal, Soney Lal, Ratipal, Misri Lal, Jharwa Chamar and Sobhnath were each sentenced to seven years' rigorous imprisonment. 3. It was not disputed before me on behalf of the Appellants that a dacoity had taken place at the house of Sheo Ratan on the night in question. The contention on behalf of the Appellants was that there was no satisfactory evidence on the record in proof of the fact that they had taken part in the dacoity. They all stated that they had been falsely implicated on account of enmity. None of the accused produced any evidence in defence. 4. Rampal stated that a constable had asked him for the loan of his bullock cart which he could not spare and on account of it he got annoyed with him and falsely implicated him in this case. 5. Soney Lal stated that in 1948 the police arrested him in a dacoity case, but he was released u/s 169, Code of Criminal Procedure that on account of it the police had a grudge against him and for that reason they falsely implicated him in this case and would not allow him to produce any defence witness. He further stated that after he had surrendered in court on 3-10-1951, he was kept in the court lock up for about five hours and that during this period he was shown by the police to the prosecution witnesses. 6. Misri Lal stated that he was kept by the Sub-Inspector in P.S. Sachendi for two days and while he was there he was shown to the prosecution witnesses and on account of this fact they were able to identify him. 6. Misri Lal stated that he was kept by the Sub-Inspector in P.S. Sachendi for two days and while he was there he was shown to the prosecution witnesses and on account of this fact they were able to identify him. He further stated that some time before the Sub-Inspector had come to his village for investigation in connection with some case and during the investigation he best some village people who cried for help, that he was sleeping at that time and on hearing the noise woke up and thinking that a dacoity was being committed at the house of the Mukhia raised and alarm which brought to the scene a large number of the village people, and that on account of this fact the Sub-Inspector had a grievance against him. 7. Bijal Bahadur stated that he had come to Kanpur from his village for the Maghi bathing festival and after his bath he went to Sisamau circle to meet a fellow villager and from his house was proceeding to the railway station when he was arrested by the police on the way. He could not give any reason why he was arrested. He admitted that he had no enmity with the police. He further stated that after his arrest he was kept in police station Juhai for three days and while he was there he was shown by the police to the witnesses and owing to this fact they were able to identify him. 8. Chhail Bihari stated that on the 10th February, 1952, he had come with his wife and children from Lucknow to Kanpur on the occasion of the Maghi bathing festival, that in the evening he was going to the railway station when he was stopped by two Sub-Inspectors on the way near a mosque, that they arrested him on the protect that his wife was an abducted woman, and that while he was kept in police station Juhi he was shown to the witnesses. He further stated that the Kanpur police was hostile to him since 194(sic), that once in 1945 they prosecuted him u/s 366 and 376, I.P.C. but he was acquitted, and that again in 1950 they falsely implicated him in a dacoity but he was released u/s 169, Cr.P.C. 9. He further stated that the Kanpur police was hostile to him since 194(sic), that once in 1945 they prosecuted him u/s 366 and 376, I.P.C. but he was acquitted, and that again in 1950 they falsely implicated him in a dacoity but he was released u/s 169, Cr.P.C. 9. Ratipal stated that he has come to Kanpur in search of employment but as be could not get any job he started working as a hawker and while engaged in (sic)s business he had a quarrel with a (sic)table who falsely implicated him in this case. He, further stated that after he had been arrested he was kept in police station Juhi for two and a half days and while he was there he was shown to the witnesses and it was for this reason that they had identified him. 10. Jherwa stated that his maternal uncle Buddha was living in village Bachhaupur and he often used to go there to meet him and consequently the people of Bachhaupur knew him. He, further, stated that Ram Gopal took him one day to cut wood at the thana and when he again asked him to cut wood the next day he did not go and for this reason he was arrested and falsely implicated in the case. 11. Sobhnath stated that he was a sweet-meet hawker, that there was a quarrel between him and some police constables as the latter had taken some sweets from him but had refused to pay the price, that on account of this enmity the police had falsely implicated him in two other dacoities, and that he was acquitted in one of them in July, 1952 and the other case was still pending. He also denied that he was kept in parda while he was in the police custody. 12. I shall therefore consider the evidence against each of the Appellants in order to determine how far it established the charge of dacoity against them and whether it is sufficient for their conviction. Rampal 13. He was correctly identified by Sheo Ratan, Ram Das, Bhagwan Din, Ram Lal, Babu Lal, Maiku and Jamuna vide the identification proceedings Ex. P-7 on 8th September, 1951. 14. The other evidence against him is of the recovery of three dhotis which are said to have been looted by the dacoits along with other property. Rampal 13. He was correctly identified by Sheo Ratan, Ram Das, Bhagwan Din, Ram Lal, Babu Lal, Maiku and Jamuna vide the identification proceedings Ex. P-7 on 8th September, 1951. 14. The other evidence against him is of the recovery of three dhotis which are said to have been looted by the dacoits along with other property. It was not denied by Rampal that these dhotis were recovered from his possession. His defence was that these dhoties belonged to his wife. They were correctly identified by Sheo Ratan, his daughter Smt. Phoolmati, his mother Smt. Govindi and his brother's wife Smt. Ram Piari. The dhotis. Exs. II and III were identified also by Sheo Ram, brother of Sheo Ratan. The learned Sessions judge has mentioned in his judgment that these three dhotis are mentioned in the list Ex. P-1 at Nos. 24, 25, and 26. Sheo Ratan is the person at whose house the dacoity was committed. He was also one of the persons who was injured during (sic) dacoity. Ram Das lives at (sic) of one house from that of Sheo Ratan and is the nephew of Sheo Ratan. He is the person who made the first information report about the dacoity. There can be no doubt about his presence at the scene of dacoity Bhagwan Din and Ram Lal are mentioned in the first information report among the persons who went on the roof of Sheo Ratan after climbing it from the roof of Chhedi Ahir and who began to throw brickbats from there towards the dacoits. Babu Lal has got his house at a distance of about 50 yards from that of Sheo Ratan. According to his evidence he woke up on hearing the noise of the dacoity and proceeded towards the house of Sheo Ratan but did not go near it as some of the dacoits were standing in front of the main door. He further stated that he stayed in the lane at distance of 25 paces from the door of Sheo Ratan's house and it was from there that he saw four or five dacoits at the main door and some dacoits coming in and going out of the house of Sheo Ratan. Soney Lal 15. He was identified by six persons viz, Sheo Ratan, Sheo Ram, Chhedi, Madan, Durjan and Laltu, Jeorakhan, Phoolmati Govindi, Maikulal, Bhikku and Jamuna. Misri Lal 16. Soney Lal 15. He was identified by six persons viz, Sheo Ratan, Sheo Ram, Chhedi, Madan, Durjan and Laltu, Jeorakhan, Phoolmati Govindi, Maikulal, Bhikku and Jamuna. Misri Lal 16. He was identified by Sheo Ratan, Ram Das, Bhagwan Din, Ram Lal, Durjan and Babu Lal., Jeorakhan, Phoolmati. Maiku and Jamuna. Bijai Bahadur 17. He was identified by Sheo Ratan, and Sheo Ram, Ram Das, Ajodhia Prasad, Maiku Lal, Jeorakhan and Bhagwan Din. Chhail Bihari 18. He was identified by Sheo Ratan, Ram Das, Jamuna Prasad, Ajodhia Prasad, Jeorakhan, Bhagwan Din, Babu Lal and Shyam Lal. Ratipal 19. He was identified by Sheo Ratan, Sheo Ram, Ram Das, Maiku, Ram Lal, Ajodhia Prasad and Lalji. Jharwa 20. He was identified by Shiam Lal, Sheo Ram, Ram Das, Bhagwan Din, Chhedi, Narain, Durjan and Gorey Lal. Sobhnath 21. He was identified by Sheo Ratan, Shiam Lal, Ram Das, Smt. Phoolmati, Maiku and Jamuna. 22. The learned Sessions Judge after taking into account the mistakes committed by the different witnesses considered Sheo Ratan, Shiam Lal, Sheo Ram, Ram Das, Chhedi, Madari, Narain, Bhagwan Din, Ram Lal, Durjan, Babu Lal, Ajodhia Prasad, Laltu and Gorey Lal as first class witnesses because these persons had been consistent in identifying the accused persons and did not commit any mistake on any occasion. Shrimati Phoolmati, Jeorakhan and Bhikku were considered as second class witnesses as they had made some mistakes. He did not, however, place much reliance on the identification by these witnesses. He discarded the evidence of Srimati Govindi, Maiku Lal and Jamuna Prasad on account of the several mistakes they had committed. 23. Besides the evidence of identification there is no other evidence against any one of these Appellants except Rampal whose case has already been discussed above and from whose possession three dhotis which were proved to be the looted property were also recovered. 24. The first contention on behalf of the Appellants was that it was unlikely that the several persons who identified the Appellants really want to the scene of dacoity and had an opportunity of seeing the dacoits. 24. The first contention on behalf of the Appellants was that it was unlikely that the several persons who identified the Appellants really want to the scene of dacoity and had an opportunity of seeing the dacoits. About Sheo Ratan it was argued that from the prosecution evidence it appeared that he was lying with his face downwards when the dacoity was being committed and in the circumstances it was unlikely that he could have seen the faces of the dacoits so as to be able to identify them later on. It was also contended that from the prosecution evidence it appeared that during the commission of the dacoity the dacoits were firing guns and some of the dacoits were keeping a watch at the door of Sheo Ratan's house so as to prevent anyone from coming near it and in the circumstances it was very unlikely that the village people could have gone on the roof of Sheo Ratan's house and seen the dacoits from there. It appears from the injury reports Exs. P-10 to P-23 there eight persons Sheo Ratan, Sheo Ram, Jeorakhan, Ram Dayal, Shyam Lal, Sunder Lal, Madari and Smt. Phoolmati were injured during the dacoity. In the circumstances there can be no doubt that they were present on the scene of the dacoity otherwise there is no explanation for the injuries received by them. In the first information report also it is mentioned that Ram Das, Madari Abir, Jeorakhan, Sundar, Bhagwan Din, Maiku Lal, Chhedi, Bhikku, Narain, Ram Lal and Diyi chamar on hearing the shouts of the dacoity went on the roof of the Chhedi Ahir and from there went to the roof of Sheo Ratan and began to hurl brickbats from that roof into the courtyard where the dacoits were looting the property, that thereupon the dacoits fired shots as a result of which Madari, Jeorakhan and Sundar Ahir were hit and that thereafter the village people assembled from all sides whereupon the dacoits began to fire at them also and subsequently they ran away. In view of the fact that several of the persons who identified the dacoits were injured the contention on behalf of the Appellants that the village people could not have assembled at the scene of the dacoity while the dacoity was being committed has no force. 25. In view of the fact that several of the persons who identified the dacoits were injured the contention on behalf of the Appellants that the village people could not have assembled at the scene of the dacoity while the dacoity was being committed has no force. 25. It was further contended that the witnesses who identified the Appellants in the jail and subsequently in the committing court and the court of sessions did not give any description of the dacoits either before the police or at the time of the identification proceedings and in view of this fact their identification was not reliable. It is true that the witnesses have admitted in their statements that they did not describe the features of the dacoits which they had recognised in their statements before the police but that alone does not discredit their testimony. It is a matter of common knowledge that during the investigation the witnesses examined by the police answer only those questions which are put to them. It may be that the investigating officer did not ask the witnesses if they could describe the features of the dacoits whom they had seen and recognised and as this question was not put to them they did not consider it necessity to describe their features themselves. The investigating officer probably asked them if they had seen the dacoits and could identify them, and they replied that they could identify them if they were shown to them. The statements of the witnesses during the police investigation are not detailed ones but very brief and in the circumstances the omission of the witnesses to describe the features of the dacoits does not necessarily mean that they did not know their features. It would have been different if the witnesses during police investigation had been definitely asked by the investigating officer if they could describe the features of the dacoits and then they would have said that they could not do so. In my opinion the mere omission on the part of the witnesses not to mention the features of the dacoits in their statements during the police investigation does not reduce the value of their evidence. 26. In my opinion the mere omission on the part of the witnesses not to mention the features of the dacoits in their statements during the police investigation does not reduce the value of their evidence. 26. It was next contended that the prosecution witnesses who identified the Appellants did not mention in their statements before the police that they had recognised the faces of the dacoits in the torch light and in view of this omission the evidence of the prosecution witnesses that they recognised the faces of the dacoits in the torch light was an improvement and could not be relied upon. In my opinion this contention does not appear to be correct. It will appear from a perusal of the first information report which was made soon after the dacoity that it was mentioned therein that the faces of the dacoits were seen in the light of the lantern and electric torches. According to this report there were three kinds of light during the dacoity. A lantern was burning under the thatch and a Dia (earthen lamp) use burning in the Chaupal. Besides these two kinds of light, there were also electric torches, which the dacoits had with them. I do not think that there is any improbability in the evidence of the prosecution witnesses that a lantern was burning under the thatch and Dia was burning in the Chaupal. 27. It was also contended that none of the ladies of the house of Sheo Ratan were not sent for the identification of the accused and that is a strong circumstance in favour of the Appellants. I do not think that merely because the ladies were not sent for the identification of the dacoits the Appellants can get any advantage out of it. It may be that the ladies were not able to see the faces of the dacoits well enough so as to be able to identity them in the jail and it was for this reason that they had not been sent for the purpose of identification. Nothing has been shown on behalf of the Appellants as to why the prosecution witnesses who identified them in the jail and in the lower courts should be disbelieved. It has not been alleged that there is any enmity between them and these witnesses and on account of this fact they have falsely identified them. Nothing has been shown on behalf of the Appellants as to why the prosecution witnesses who identified them in the jail and in the lower courts should be disbelieved. It has not been alleged that there is any enmity between them and these witnesses and on account of this fact they have falsely identified them. It has also not been alleged that there is any enmity between the Appellants and the police and for that reason the police got them identified by these witnesses in order to obtain their conviction. 28. As regards the three dhotis which were recovered from the possession of Rampal and which were put up for identification it was urged on his behalf that these three dhotis did not correspond with any of the dhotis mentioned in the list of property Ex. P-1 which was given by Sheo Ratan to the Station Officer on 5th August, 1951. The recovery list of these dhotis is Ex P-24. This recovery list does not given any description or detail of the three dhotis which were recovered from the house of Rampal accused. The three dhotis which were put up for identification are mentioned in Ex. P-8. According to this document the dhoti Ex. 1 was a white dhoti with kinara. The dhoti Ex. 2 was a green bluish cotton dhoti and Ex. III was a silk greenish dhoti. A perusal of the list Ex. P-1 shows that among the looted property there was one white zanani dhoti having yellow golden border and red flowers of piping design worth Rs. 8, another zanani dhoti of azure colour having border of flowery design and of catechu colour made of thick thread worth Rs. 5 and, a third used silken zanani dhoti of green colour having broad border of flowery design worth Rs. 4. These dhotis were identified by Sheo Ratan, his daughter Phoolmati, his mother Govindi and his brother's wife Ram Piari. The dhotis Exs. II and III were further identified by Sheo Ram. The learned Sessions Judge compared the dhotis mentioned as items Nos. 24, 25 and 26 in the list Ex. P-1 with the dhoties Exs. I, II and III which were put up for identification and he was of the opinion that item No. 24 gave the exact description of the dhoti Ex. I, item No. 25 of the dhothi Ex. The learned Sessions Judge compared the dhotis mentioned as items Nos. 24, 25 and 26 in the list Ex. P-1 with the dhoties Exs. I, II and III which were put up for identification and he was of the opinion that item No. 24 gave the exact description of the dhoti Ex. I, item No. 25 of the dhothi Ex. II and item No. 26 of the dhoti Ex. III., The dhotis Exs. I to III were before him at the trial and he had therefore the advantage of comparing them with the description given in Ex. P-1. I see no reason to disagree with his view that the dhotis Exs I to III answered the description of the three dhotis mentioned as items Nos. 24, 25 and 26 in the list Ex. P-1. The accused Rampal did not produce any evidence in proof of the fact that these three dhotis belonged to him or to his wife. In the absence of any such evidence there does not appeal any reason to disbelieve the evidence of Sheo Ratan and the other members of his family that the dhotis Exs. I to III belonged to his wife and were among the looted property. 29. Even if for some reason it is not accepted that the dhotis Exs. I to III were the looted property there is the evidence of identification against Rampal and there is no satisfactory reason to disbelieve that evidence. 30. Considering the entire evidence on the record, I am of opinion that there is sufficient evidence against the Appellants that they took part in the dacoity which was committed at the house of Sheo Ratan. They have therefore been rightly convicted u/s 395 I.P.C. The sentences are not severe. The two appeals are therefore dismissed. As the Appellants are in jail they shall serve out their contences.