JUDGMENT A.P. Srivastava, J. - These are three connected appeals that arise out of the same case and can therefore, be disposed of together. 2. Criminal Appeal No. 1788 of 1958 is on behalf of six persons Bhagwat Singh, Hari Singh, Ram Dass, Ajai Singh, Kartar Singh and Chhattar Singh. Criminal Appeal No. 1836 is on behalf of Chaoo Khan and Criminal appeal No. 114 of 1959 is a jail appeal by Mahabir. All these eight Appellants have been convicted by the Civil and Sessions Judge of Bulandshahr u/s 396, IPC and each of them has been sentenced to ten years' rigorous imprisonment. Three other persons Nanwan, Ahmad Saeed and Inder were also tried along with these Appellants. Nanwan was also convicted u/s 396, IPC and sentenced to ten years' rigorous imprisonment. He submitted a jail appeal but that appeal was dismissed. Ahmad Saeed and Inder were acquitted. Out of these Appellants Bhagwant Singh, Hari Singh and Kartar Singh also stood charged alternatively u/s 412, IPC but because they were convicted by the learned Sessions Judge u/s 396, IPC no conviction was recorded in their case in respect of the alternative charge. 3. The dacoity in connection with which the Appellants were prosecuted was alleged to have been committed in the night between 18th and 19th of October, 1957 at the house of Natthu Mal in village Nabinagar, police station Jahangirabad, district Bulandshahr. Nathu Mal had a brother Faqir Chand who lived jointly with him. Mahipal was the minor son of Nathu Mal and Km. Lilawati was his minor daughter. Nathu Mal and his brother Faqir Chand appear to be influential men in the village. They had a house facing west. There was a lane in front of the house. In the northern corner of the house there was the grocery shop of these brothers and at the southern end here was their cloth shop. There is a Atta on the first floor just above the cloth shop. Their is a bigger Atta on that floor towards the east. It has been constructed over two Kothris and one Kotha which exist in the ground floor. Nathu Mal himself along with two other persons Shanker Singh and Sardar Singh was sleeping in the Atta just above the cloth shop. Mahipal, Km. Lilawati, their mother and their younger brother were sleeping in the bigger Atta already mentioned. It has been constructed over two Kothris and one Kotha which exist in the ground floor. Nathu Mal himself along with two other persons Shanker Singh and Sardar Singh was sleeping in the Atta just above the cloth shop. Mahipal, Km. Lilawati, their mother and their younger brother were sleeping in the bigger Atta already mentioned. Faqir Chand was sleeping in the lower storey of the house. The house which adjoins the house of Nathu Mal belongs to Smt. Dulari and next to her house there is the broken shop of Bahori Lal. On the south-east of the shop there is the house of Belchand deceased brother of Nathu Mal who used to live separately from him. In front of the house of Belchand there is a Chowk of a temple. 4. At about mid-night Nathu Mal and the persons who were sleeping with him were aroused by the movement of the dacoits and the sound of a gun fire. They found that a number of dacoits were there on the first floor. Some of the dacoits entered the Atta where Nathu Mal was sleeping and carried away the lantern which was lighted there. Nathu Mal then got up and began to flash his torch. The dacoits were armed with guns, revolvers, lathis and spears and also carried torches. A lantern was lighted in the bigger Atta also where the wife of Nathu Mal and his minor children were sleeping. The dacoits took away the ornaments of the wife of Nathu Mal and of his daughter Km. Lilawati. They looted the other valuable properties of the house. Some of the persons of the locality collected in the Chowk of the temple-Some sugar cane leaves were lying there. The heap were set ablazed and that created a flood of light. The light thus created entered the atta in which Nathu Mal was sleeping. After looting the house for about an hour the dacoits left with their body and passed through the compound of the temple, Belchand was raising an alarm from above the roof of his house. He was shot at and he died as a result of the injuries received by him. After looting the house for about an hour the dacoits left with their body and passed through the compound of the temple, Belchand was raising an alarm from above the roof of his house. He was shot at and he died as a result of the injuries received by him. After the dacoits had departed Barkat was asked to lodge a first information report and he lodged the report at 6 a.m. on the 19th of October, 1957 A case was registered and the Station Officer Sri Ram Kripal Singh proceeded to the spot to make an investigation. He found signs of a dacoity having taken place. Twenty two discharge cartridges, one percussion cap and one lead ball which were found lying on the first floor, were recovered. A list of looted properties was given to him. The dead body of Belchand was sent for post-mortem examination the various persons, who were ultimately challaned, were arrested. Some of them were put for identification. Looted property was alleged to have been recovered from the possession of some of them. After completing the investigation two challans--one in respect of ten persons and the other in respect of one person, were submitted. All the eleven persons were committed to the Court of Sessions to stand their trial for an offence punishable u/s 396, IPC. Four of them Inder, Bhagwat Singh, Kartar Singh and Hari Singh were also charged alternatively u/s 412, IPC. 5. The Appellant Chaoo Khan pleaded that he was directed by a police constable in village Rajwana to take certain gamblers to the thana and when he went there he was detained. He alleged that he was shown to the identifying witnesses by the police at the Thana at Aurangabad and that his photo was also taken there. Ram Dass, Ajai Singh, Ahmad Saeed, Chhattar Singh, Nanwan, Hari Singh and Kartar Singh also pleaded that they had been shown to the witnesses and their photos were taken while they were in the Kotwali presumably with the intention of getting them identified by the witnesses later. Ajai Singh said that he was a student of the BA class in the DAV College, Bulandshahr. Chhattar Singh said that he was a dismissed police constable. Ajai Singh said that he was a student of the BA class in the DAV College, Bulandshahr. Chhattar Singh said that he was a dismissed police constable. Mahabir said that he had been arrested in the Collectorate Bulandsnahr where he had gone to do Pairvi in a case and that he had been shown to the identifying witnesses at the Thana at Aurangabad where he was also beaten. He also stated that he had been shown to the witnesses in the court at Bulandshahr. In respect of the charge of being in possession of the stolen property Kartar Singh admitted the recovery of the articles which were alleged to have been recovered from his possession but said that he had purchased them in connection With a marriage that was to take place in his family. Bhagwat Singh denied the alleged recovery and so did Hsri Singh. 6. The learned Sessions Judge held that a dacoity had in fact been committed at the house of Nathu Mal as was alleged by the prosecution, that in that dacoity Belchand had received injuries on account of which he had died and that the evidence of identification and recovery which had been produced against the Appellants was sufficient to justify the conclusion that they had taken part in the dacoity. He, therefore, convicted the Appellants u/s 396, IPC and sentenced each of them to ten years' rigorous imprisonment as has been mentioned. Though the Appellants who alleged that they had been photographed, examined a witness BL Kohli (DW 7) to prove that they had been photographed in the Kotwali their case on the point was not accepted by the learned Sessions. Judge. 7. In appeal the factum of the dacoity or the fact that Belchand had died on account of injuries caused to him by the dacoits who had raided Nathu Mai's house were not disputed and it is therefore, unnecessary to consider the evidence that was produced in support of that part of the case. 8. When the appeal was first argued on the 27th of October, 1959 the main contention that was pressed was that the learned Sessions Judge had wrongly rejected the Appellants' contention that they had been photographed after their arrest in the Kotwali, Bulandshahr. 8. When the appeal was first argued on the 27th of October, 1959 the main contention that was pressed was that the learned Sessions Judge had wrongly rejected the Appellants' contention that they had been photographed after their arrest in the Kotwali, Bulandshahr. It was pointed out that the Appellants had not only produced the photographer who had taken their photographs but had also got negatives and the prints of the photographs produced. They clearly showed that those photographs had been taken in the Kotwali. Reliance was also placed on an application sent by the Appellant Ajai Singh from jail to the Superintendent of Police on the 30th of October, 1957 (Ex. Kha 2). 9. It was noticed by me on that date that the photographs themselves showed in their background the place where the persons photographed were standing at the time when their photos were taken. The six Appellants, who alleged that they had been photographed in the Kotwali, had been in custody ever since they had been arrested. 10. If, therefore, those photographs had been taken while those persons were in the Kotwali it would go a long way in supporting their contention that they had been photographed after their arrest so that the photographs may be shown to the witnesses to enable them to identify those Appellants. As it appeared to me that the matter had not been considered in the manner in which it ought to have been considered, by an order dated 27th of October, 1959, I directed that the record be sent back to the trial court for taking additional evidence. The additional evidence which was to be certified was the further statement of Sri B.L. Kohli (DW 7) who was to be recalled and was to be examined about the exact place in the Kotwali where he claimed to have taken the photographs. The evidence of some other photographer was also to be certified who was to take the photograph of the place mentioned in the application Ex. Kha 2 and of the place pointed out by Sri B.L. Kohli, after making some person stand at these places. The purpose was to be certain about the place where the photographs produced on behalf of the Appellants had been taken. 11. Kha 2 and of the place pointed out by Sri B.L. Kohli, after making some person stand at these places. The purpose was to be certain about the place where the photographs produced on behalf of the Appellants had been taken. 11. In pursuance of the direction of this Court the Sessions Judge has now recorded the further statement of Sri Kohli and has also certified the evidence of one Ram Kishan Sharma photographer appointed by him. The latter has also produced the negatives and the prints of the photos which he himself took on the spot. A perusal of the evidence so certified makes it clear beyond all doubts that the Appellants Were correct in their contention that the photographs originally filed by them were taken as alleged by them inside the Kotwali of Bulandshahr while they were there after their arrest and before they were sent to jail. The obvious purpose of taking these photos was to show them to the witnesses so that they may identify these Appellants at the time of their identification parades. In view of the position that has emerged after the further evidence has been recorded it is contended by the learned Counsel for the Appellants that the evidence of identification produced in this case must be wholly rejected and that no finding can be based upon it. Learned Counsel further contended that the other evidence that has been produced in the case was also insufficient for justifying the conviction of the Appellants of any of the offences with which they stood charged. In most cases of dacoity the dacoits are nor arrested on the spot. The evidence on the basis of which their conviction is sought, therefore, consists only of identification and recovery of stolen properties. Great importance is, therefore attached to the evidence of identification in this class of cases. As it is on that evidence that the question whether a certain person participated in the dacoity or not has to be specific it is, therefore, expected that the evidence of identification should be entirely above board and should be such as can command confidence. Great importance is, therefore attached to the evidence of identification in this class of cases. As it is on that evidence that the question whether a certain person participated in the dacoity or not has to be specific it is, therefore, expected that the evidence of identification should be entirely above board and should be such as can command confidence. If as appears to be established conclusively in the present case the Investigating Officer in order to secure the conviction of the various Appellants in this case actually got them photo-graphed after they had been arrested and before they were sent to the jail, his action must be condemned in the strongest possible terms. This act of his has made the entire evidence about identification suspicious and the evidence of witnesses who identified persons as dacoits after having been shown the photos taken at the Kotwali cannot in my opinion be relied upon in any manner. The learned Counsel for the Appellants, therefore, appears to be correct in his contention that the evidence of identification in this case must be rejected altogether. 12. Six of the accused persons, Ram Dass; Ajai Singh, Ghhattar Singh, Han Singh, Kartar Singh and Nanwan alleged that they had been photographed in the Kotwali. Sri Kohli filed the photos of these persons which he had taken while they were in the Kotwali. Out of these persons Ram Dass, Ajai Singh and Ghhattar Singh were persons against whom there was evidence of identification alone. Each of them had been identified by a number of witnesses but their photos had been taken and the possibility of the witnesses having seen their photographs before they identified them at the parade could not be excluded. I think no value can be attached to the evidence of destination produced in respect of these Appellants. There being no other kind of evidence against them the conviction of these Appellants Ram Dass, Ajai Singh and Chhettar Singh u/s 396, IPC cannot be upheld. 13. Against Hari Singh there was evidence of identification as well as of recovery. He was also one of the persons whose photo had been taken by Sri Kohli in the Kotwali. On that account the evidence of identification relating to him must be discarded. 13. Against Hari Singh there was evidence of identification as well as of recovery. He was also one of the persons whose photo had been taken by Sri Kohli in the Kotwali. On that account the evidence of identification relating to him must be discarded. So far as the recovery of stolen property from his possession is concerned it was alleged that thirteen pieces of sliver lachhas of one kind and 14 pieces of sliver lachhas of another kind had been recovered from his possession. The learned Sessions Judge has, however, held that the recovery of these articles from the possession of this Appellant was not satisfactorily established. This piece of evidence too, thus gets, excluded. Against this Appellant Hari Singh therefore there does not remain any satisfactory evidence on the basis of which he can be held guilty u/s 396 or in the alternative u/s 412 IPC. His conviction must, therefore be set aside. 14. Against Kartar Singh Appellant there was evidence of identification as well as recovery of stolen properties. He had been identified by a number of witnesses. He was, however, one of the persons who had been photographed at the Kotwali before he was sent to jail. On that ground the evidence of identification against him also becomes suspicious and has to be rejected. 15. The articles that were alleged to have been recovered from his possession were three thans of Italian Ex. 8, 9, 16, one than of Patta Ex. 10, one than of poplin Ex. 11, one than of poplin Ex. 12 and one than of jafar Ex. 13. These thans were, alleged to have been taken away from the cloth shop of Natthu Mal. These thans were recovered from the possession of this Appellant by Sri Ram Kripal Singh in the presence of Om Prakash (PW 10). The fact that these thans were in the possession of the Appellant was not disputed by him. The plea he put forward was that these thans belonged to him and that he had purchased them at Delhi in connection with a marriage that was to take place in his family. Nathu Mal (PW 1) and Faqir Chand (PW 9) identified these thans as stolen property. The plea he put forward was that these thans belonged to him and that he had purchased them at Delhi in connection with a marriage that was to take place in his family. Nathu Mal (PW 1) and Faqir Chand (PW 9) identified these thans as stolen property. Because of the dacoity the Bijaks of the shop of Natthu Mal and Faqir Chand could not be produced for showing that the thans belonged to them and had been stolen from their shop by the dacoits. It is true that there was no particular mark of identification on these thans but on that account the evidence of these witnesses on the point cannot be discarded. Nathu Mal was not asked how he was able to identify those thans as his. Faqir Chand was cross-examined on the point and stated that he could identify these thans because he had purchased them for sale and as they were his property. 16. The case which tins Appellant put forward for being in possession of the thans was not acceptable at all. He stated that he had purchased them at Delhi and examined the Munim of a firm to prove a duplicate Bijak of Ex. Kha-3. As has been noted by the learned Sessions Judge the Bijak stood not in favour of Kartar Singh but in favour of Lala Kartar Nath. The Bijak did not relate to all these thans. No satisfactory evidence was produced to prove that any marriage was in fact to take place in the family of this Appellant. Ordinarily a person of the status of this Appellant could not be expected to have so many thans and particularly three thans of Italians in his possession. The learned Sessions Judge thus appears to be justified in his view that it was proved that these thans had been taken away from the shop of Nathu Mal at the time of the dacoity. This Appellant was found in possession of these thans shortly after the dacoity had been committed. He could, therefore, be presumed u/s 114 of the Indian Evidence Act to be in possession of these thans knowing them to be stolen properties. He has not succeeded in rebutting that presumption. This Appellant was found in possession of these thans shortly after the dacoity had been committed. He could, therefore, be presumed u/s 114 of the Indian Evidence Act to be in possession of these thans knowing them to be stolen properties. He has not succeeded in rebutting that presumption. In the absence of any satisfactory evidence about identification, as there is against this Appellant evidence of the recovery of Stolen property only I think the proper section under which this Appellant should have been convicted was Section 412 IPC. His conviction u/s 396 IPC must, therefore, be set aside and instead he must be convicted u/s 412 IPC. The proper sentence in his case appears to be two years' RI. He is, consequently, sentenced u/s 412 IPC to two years' RI. 17. Against Bhagwat Singh Appellant also there is the evidence of identification as well as of recovery. He was correctly identified by Natthu Mal (PW 1), Mahipal (PW 2), Kumari Lilawati (PW 3), Kaik Singh (PW 7) and Faqir Chand (PW 9) at the test parade which was held on the 12th of November 1957. All these witnesses were, however, witnesses who had identified those Appellants also, who had been photographed at the Kotwali and whose photographs must have been shown to these witnesses. As I have already said the fact that some of the accused persons in the case were photographed after their arrest makes the evidence about identification suspicious and on that account I do not feel it will be safe to rely on the evidence of identification of these witnesses. I am, therefore, not prepared to attach any value to the identification of this Appellant by these persons. 18. The prosecution, however, proved that poplin Ex. 1, Qameez Bachkani Ex. 2, Chadar Malmal Ex. 3, Qameez Jaffar Ex. 4, Saffa Ex. 5, one Zanani shirt Ex. 25 were recovered from the possession of this Appellant. They were kept by him in a locked box. He himself supplied the key of that box from his own possession. Though he denied recovery of these ankles two witnesses Gajraj Singh (PW 29) and Sri Dakhan Lal (PW 30) proved the recovery. He alleged against Dakhan Lal that the latter was against him because he had objected to his taking possession of some land of his purohit but that suggestion was not substantiated. Though he denied recovery of these ankles two witnesses Gajraj Singh (PW 29) and Sri Dakhan Lal (PW 30) proved the recovery. He alleged against Dakhan Lal that the latter was against him because he had objected to his taking possession of some land of his purohit but that suggestion was not substantiated. Against Gajraj Singh he said that he had filed a suit against him. It was dismissed by the Panchayati Adalat. On that account Gajraj Singh could not have any grievance against this witness which could provide a motive for his giving a false evidence. The recovery of these articles from the possession of this Appellant thus appears to have been satisfactorily established. 19. It is also proved satisfactorily that these articles were stolen properties. They were identified before Sri Ved Prakash (PW 46) the Magistrate who conducted the identification proceedings in respect of these properties by Nathu Mal as well as Faqir Chand. They were mentioned in the list of stolen properties given to the Investigating Officer Ex. Kha 2. No explanation was put forward by Bhagwat Singh about his being in possession of these articles. 20. In the absence of any satisfactory evidence about identification, this Appellant Bhagwat Singh too should not have been convicted u/s 396, IPC. But he could not escape the charge u/s 412, IPC. As he had been found to be in possession of the property stolen at the time of the dacoity he too, should, therefore, have been convicted u/s 412 IPC and should have been sentenced for that offence to two years' RI. 21. The only evidence against Chaoo Khan Appellant was that of identification. He had been arrested on the 24th of October 1957 by Sri Ram Kripal Singh, Investigating Officer and was said to have been sent to jail on that very day. He was identified at the identification parade which was held on the 12th of November 1957 by Faqir Chand (PW 9) and Km. Lilawati (PW 3). Both these witnesses were the persons who had identified the other Appellants also who had been photographed at the Kotwali. On that account I am not prepared to attach any value to their identification of this Appellant. There being no other evidence against him I think his conviction cannot be upheld. 22. There remains Mahabir who has submitter his appeal from jail. On that account I am not prepared to attach any value to their identification of this Appellant. There being no other evidence against him I think his conviction cannot be upheld. 22. There remains Mahabir who has submitter his appeal from jail. He was arrested on the 26th of December 1957 and was brought to Jehangirabad police station and then sent to the jail the next day at 7-30. He was put up for identification in a parade that was held on the 6th of February 1958. At that parade he was identified by Natthu Mal (PW 1). Mahipal (PW 2) and Km. Lilawati (PW 3). Two things are noticeable in respect of these witnesses. The first is that they were able to identify this Appellant after a period of four months without committing a single mistake. This by it self is somewhat suspicious. All of them are witnesses who identified those Appellants whose photos had been taken at the Kotwali. On this account too the evidence of these witnesses lost much of its value. In the Circumstances I feel that on the basis of this evidence of identification alone it will not be safe to uphold the conviction of this Appellant. No stolen property was alleged to have been recovered from his possession. The conviction of this Appellant also must, consequently, be set aside. 23. In the result the appeals of Ram Dass, Ajai Singh, Chhattar Singh, Mahabir, Chaoo Khan and Hari Singh are allowed. Their conviction and sentences are set aside. All of them are in jail. They will be set at liberty at once unless they are required in some other connection. The appeals of Bhagwat Singh and Kartar Singh are allowed to this extent that their conviction u/s 396 IPC and the sentence of ten years' RI imposed upon them for that offence are set aside. They are instead convicted u/s 412 IPC and each f them is sentenced for that offence to two years' RI. They arc in jail and must serve out that sentence. A copy of this judgment shall be sent to the Government so that any action that is considered necessary may be taken against the person who got photos of some of the Appellants taken when they were in the Kotwali Bulandshahr.