ORDER T.P. Mukerjee, J. - In these two connected appeals the three Appellants have been convicted Under Section 395, IPC and sentenced to undergo rigorous imprisonment for seven years each. In addition, Appellant Bhikha has been convicted Under Section 25 of the Arms Act and sentenced to undergo rigorous imprisonment for one year. The two sentences imposed upon Bhikha are to run concurrently. 2. Briefly stated, the case for the prosecution is that-at about mid-night in the night between the 26th and 27th of July, 1965 there was an armed dacoity at the house of complainant Khyali (PW 2) in village Harbans Pur, PS Sikandara, district Kanpur. It is stated that the three Appellants along with two or three other culprits raided the house of Khyali (PW 2). Khyali was sleeping in a room with his nephew Devi Dayal, while his wife and another nephew of Khushali were sleeping in a room inside the house. A burning lantern was hanging inside the room in which Khushali was sleeping and another burning lantern was hanging in the room in which his wife was sleeping. The dacoits having effected entry into the house caught hold of Khyali and Devi Dayal and brought them into the court-yard. The ladies of the house were also brought in the courtyard of the house. The dacoits then started beating Khyali. Khyali raised an alarm on hearing which his relations and neighbours woke up from sleep and rushed to the scene of occurrence. The dacoits in the meantime had started looting the property. They were armed with pistols and lathis and they also carried torches with them. After committing the loot for about an hour the dacoits started running away. They fired one shot when leaving the house of Khyali and when they found that they were being chased by the villagers they fired two more shots as a result of which Buburam (PW 3), Phul Chand and Sukh Lal (PW 4) received injuries. Nevertheless, the villagers continued to chase the docoits and the former succeeded in overpowering Appellant Bhikha and apprehending him. The rest of the dacoits made good their escape. Appellant Bhika was carrying a jhola in his hand containing a country made pistol, a torchlight, five live cartridges and two spent cartridges besides other things. 3. Khyali lodged the first information report at about 3 a.m. on 27-7-1965 at P.S. Sikandara. The rest of the dacoits made good their escape. Appellant Bhika was carrying a jhola in his hand containing a country made pistol, a torchlight, five live cartridges and two spent cartridges besides other things. 3. Khyali lodged the first information report at about 3 a.m. on 27-7-1965 at P.S. Sikandara. The Investigating Officer Girja Shanker (PW 13) took up investigation of the case. He went to the scene of occurrence at about 4-30 a.m. and took charge of Appellant Bhikha who had been apprehended by the villagers with the fire arms and ammunition which were found in the jhola. 4. Appellants Kaliu and Munna were arrested the next day (28-7-1965) at 3-30 p.m. near a Canal culvert in village Dharapur by Sub Inspector Gopichand (PW 9) who brought them to the police station at Sikandara at 6.30 p.m. Both of them were lodged in the District Jail at Kanpur on 30th July. These two Appellants were put up for test identification on 9-9-1965 before Magistrate Chandrahas Singh (PW 12). Appellants Kallu and Munna were identified by Khushali, Khyali, Baburam, Sukhlal and Ram Swarup (PWs 1 to 5 respectively) besides four more persons who were not examined by the prosecution as witnesses in the case. Thereafter charge sheets were submitted against all the three Appellants and they were put up for trial in the court of sessions with the results already mentioned. 5. The fact that a dacoity was committed in the house of Khyali on the date and at the time as alleged by the prosecution is not controverted. In fact, the evidence of the five eye witnesses viz., Khushali, Khyali, Baburam, Sukhlal and Ram Swarup (PWs 1 to 5) clearly testifies to that fact. Moreover, it will appear from their evidence that there were two lanterns burning in the house at the time of the dacoity and the dacoits as well as the villagers also carried torch lights which they had been flashing constantly. It is also in evidence that the dacoits belaboured Khyali and injured Baburam (PW 3), Sukhlal (PW 4) and Mulchand by pistol shots. It is also in evidence that the dacoits belaboured Khyali and injured Baburam (PW 3), Sukhlal (PW 4) and Mulchand by pistol shots. It is obvious, therefore, that the inmates of the house as well as some of the villagers who had assembled there had ample opportunity to see the Appellants and identify them in the light of the burning lanterns and of the torches which were being flashed during the course of the occurrence. 6. So far as Appellant Bhikha is concerned, he was, as already noted, arrested after a hot chase by the villagers and a country made pistol as well as live cartridges were found in his possession. All the eye witnesses to the occurrence have testified to his participation in the dacoity and his apprehension when he was running away along with the other dacoits. The evidence of the Investigating Officer Sri Girja Shanker (PW 13) also shows that when he visited the scene of occurrence at 4.30 a.m. he found Bhika in the custody of the villagers and the jhola containing the pistol and cartridges besides a torchlight and other things were also produced before him at the same time. There is, therefore, no doubt about his complicity in the crime and of the recovery of the fire arms and ammunition from his possession. He was unable to produce a licence therefor. Therefore, the charges against this Appellant have been established beyond reasonable doubt. 7. About Appellant Munua, he was, as already mentioned, arrested on 28-7-1965 in the afternoon at about 3.30 p.m. He was identified, in the test identification parade by all the five eye witnesses to the occurrence namely Khushali, Khyali, Baburam, Sukhlal and Ram Swarup (PWs 1 to 5 respectively) besides four more witnesses who were not produced at the time of the trial. This Appellant belongs to a different village and there is no evidence of any enmity between him and the complainant or his relations or his neighbours. There is, therefore, no reason to think that he has been falsely implicated in the case. The defence of this Appellant was that he was shown to the eye witnesses at the police station, appears to be unfounded. 8. So far as Appellant Kallu is concerned, he was arrested along with Appellant Munua at the same time and place by Sub Inspector Gopi Ghand (PW 9). The defence of this Appellant was that he was shown to the eye witnesses at the police station, appears to be unfounded. 8. So far as Appellant Kallu is concerned, he was arrested along with Appellant Munua at the same time and place by Sub Inspector Gopi Ghand (PW 9). He was also identified by the same number of witnesses. It would appear, however, that the identification of this Appellant by the witnesses cannot be implicitly relied upon. There was a prominent mark on his facts. There was a deep cleft in the middle of his chin. It appears that this had escaped the notice of Magistrate Chandrahas Singh (PW 12), who held the test identification parade in the District Jail, because he makes no mention of this mark in the memorandum of identification prepared by him (Ex. 18). When the Magistrate was being examined in the court of session his attention was drawn to the cleft in the chin of Appellant Kallu. The Magistrate stated that the cleft on the chin was an insignificant one and therefore, he did not take any precaution to conceal the mark. He, however, stated that he had mixed up the suspects along with under trials having similar appearance. It is highly doubtful that the Magistrate could have found as many as ten under-trial prisoners in the gaol having a cleft in the chin. According to the note made by the learned Sessions Judge in the deposition of this witness, the cleft in the middle of the chin of Appellant Kallu was sufficiently deep and it was visible even from a distance. In the circumstances, it was the duty of the Magistrate who held the test identification parade to have taken the precaution to cover up the cleft in the chin. It is true no doubt that when a dacoity is committed some of the dacoits might be identified by inmates of the house or villagers who happen to be there at the time of occurrence by prominent marks, if any, on the faces of the dacoits. It is true no doubt that when a dacoity is committed some of the dacoits might be identified by inmates of the house or villagers who happen to be there at the time of occurrence by prominent marks, if any, on the faces of the dacoits. If Appellant Kallu had been identified at the time of occurrence by the mark on the chin which, according to the learned Sessions Judge, is a prominent mark noticeable from a distance one would expect that the complainant would mention in the first information report that one of the dacoits had been identified by the split mark on his chin. There is no such mention in the first information report, nor did any of the witnesses make a mention of the fact in his statement at any stage of the trial. It was, obviously, quite easy for the police to have told the identifying witnesses before the parade was held that the person bearing a been cleft on the chin was one of the suspects. Learned counsel for the Appellant also pointed out that there was an inordinate delay on the part of the police to have sent up this Appellant to the District Jail at Kanpur after his arrest. It was submitted that the Appellant was brought to the police station at 6-30 p.m. on 28-7-1965. He suggested that the police had in the meantime contrived to show this Appellant to the identifying witnesses before he was lodged in the jail. I am, however, unable to accede to this suggestion. The delay has been explained by constable Amritlal (PW 10) who had taken this Appellant from police station at Sikandara to the District Jail at Kanpur. He said that he brought the Appellant from Sikandara by bus to Bhognipur and from there they took another bus and came to Chunniganj at Kanpur. He said that he arrived with the Appellant at Chunniganj at about 9 o'clock in the night. It was submitted at the bar that the distance from Sikandara to Bhognipur is about ten miles and the distance from there to Chunniganj was about forty miles. The constable was not questioned as to why the distance of fifty miles could not be covered in a shorter time and why he could not arrive at Chunniganj earlier than 9 o'clock in the night. The constable was not questioned as to why the distance of fifty miles could not be covered in a shorter time and why he could not arrive at Chunniganj earlier than 9 o'clock in the night. It is significant that there was no suggestion to the constable (PW 10) that he stopped on the way with a view to allow an opportunity to the prosecution witnesses to see the Appellant. The suggestion made on behalf of the defence to this witness was that this Appellant was badly beaten by the police and there were marks of assault on his person. It was suggested that the Appellant was not lodged in the jail on 29-7-1965 so that some of the marks of assault might become fainter. The Appellant himself said in his statement Under Section 342 Code of Criminal Procedure that he was shown to the witnesses at the police station at Sikandara. He did not say that he was shown to any witness when constable Amritlal (PW 10) was taking him from Bhognipur to Chunniganj. I am, therefore, unable to hold that the Appellant had been shown to any of the witnesses before he was lodged in the jail. The possibility, however, remains that his appearance might have been described to the witnesses by the police with reference to the prominent mark which was there on his chin. 9. In the case of Barsati v. State 1965 ALJ 166 Beg, J. has given the admonition that distinctive marks on the face of a suspect should be covered at the time of the identification proceedings. The learned Judge has, however, made an observation which has been quoted by the Sessions Judge in his judgment to support the view that it was not necessary for the Magistrate to have concealed or covered this identifying mark on the chin of Appellant Kallu. The observation made by Beg, J. is as follows: "In the process of identification of a face, certain parts of the face, such as the nose, the chin, the mouth, the eyebrows even serve to indicate and fix those characteristics upon the mind which distinguish the face from others and enable its correct identification. The observation made by Beg, J. is as follows: "In the process of identification of a face, certain parts of the face, such as the nose, the chin, the mouth, the eyebrows even serve to indicate and fix those characteristics upon the mind which distinguish the face from others and enable its correct identification. If those very characteristics are concealed or given a false appearance, I fail to understand how the identification can be reliable." The implication in the observation quoted above, is, obviously, that when a crime is committed the culprits are recognised by certain characteristics on their face, nose, chin, mouth and other parts of the body and the persons who identify the culprits by reason of such characteristic marks of the culprits, carry the impression of such characteristic marks in their memory and identify the culprits at the time of the identification proceedings. If such characteristic marks are covered up, it would be impossible for the witnesses who have seen the culprits committing the crime to identify the latter at the time of the identification proceedings. There is, no doubt, considerable force in the observation made by my learned brother Beg, J. The fact, however, remains that if the complainant or any of the witnesses identified any dacoit by reason of any prominent identifying mark on the face or any other part of the body, one would expect that mention would he made either in the first information report or in the statement of the witnesses during, the various stages of the trial, of the existence of such characteristic mark or marks on the person of the dacoit or dacoits. In this case, as I have already noticed, no such mention has been made of the existence of a sufficiently wide cleft on the chin of one of the dacoits who had participated in the dacoity. It is obvious, therefore, that the cleft on the chin of Kallu had not been noticed by the complainant or any of the eye witnesses at the time of occurrence. It was, therefore, necessary that the cleft on the chin of Appellant Kallu should have been covered before he was put up for test identification. As this was not done, the Appellant is entitled to the benefit of doubt. 10. The result is that the appeals of Bhikha and Munua are dismissed. Their conviction and sentences are confirmed. It was, therefore, necessary that the cleft on the chin of Appellant Kallu should have been covered before he was put up for test identification. As this was not done, the Appellant is entitled to the benefit of doubt. 10. The result is that the appeals of Bhikha and Munua are dismissed. Their conviction and sentences are confirmed. They are both in jail. They will serve out the sentences imposed on them. The appeal of Appellant Kallu is allowed. He is acquitted and set at liberty. He is on bail. His bail bonds are discharged.