JUDGMENT H.C. P. Tripathi, J. - These ten appellants have filed this appeal against their convictions recorded by the learned Assistant Sessions Judge of Azamgarh in a ease under Section 3951397, I.P.C. Appellants 1 to 9 have been convicted under Section 395/397 I.P.C. and sentenced to eight vears rigorous imprisonment. Appellant No. 10 Dulare has been convicted under Section 412 I.P.C. and sentenced to five years rigorous imprisonment. 2. The prosecution story, in brief, is as follows :- In the afternoon of July 11, 1962 the male members of the complainants family except himself had gone to Bilariaganj in the marriage party of his brother Bindhyachal. During the night a lantern was burning inside the house and the ladies of the family had been singing marriage songs till after midnight. Then they were going to retire, their cries was heard by the complainant who was sleeping outside that Chaudhari, Kalpu, Moti and Badri of Durgapur were looting them. The complainant and his neighbour Pheku were awakened by this alarm and in the light of the torch they saw some dacoits armed with spear and torches standing at the door of the outer courtyard. They thereupon raised an alarm which attracted the prosecution witnesses and villagers on the scene. The villagers began pelting brick-bats on the dacoits. Some of them flashed their torches towards the dacoits and the complainant himself put on fire a heap of dried sugarcane leaves which were stored about 50 paces away from the door of the complainant which produced considerable light illumining the whole scene. The dacoits were seen and recognised by the villagers in the light of the lantern, torches and the burning fire. The dacoits fired once or twice to scare away the villagers and after ransacking the movable of the house and depriving the ladies of their ornaments, they bolted away with the captured booty. The witnesses chased them for some distance but ultimately retired on ; account of the fear of the dacoits. 3. A written report of the incident was lodged by the complainant at police station Kandharapur on July 12, 1962 at 9.4 a.m. when the Station Officer Sukhnandan Singh reached the village at 12.30 p.m. he was handed over a list Ex. Ka-2 of the stolen articles. 4. 3. A written report of the incident was lodged by the complainant at police station Kandharapur on July 12, 1962 at 9.4 a.m. when the Station Officer Sukhnandan Singh reached the village at 12.30 p.m. he was handed over a list Ex. Ka-2 of the stolen articles. 4. Mahesh, Abdul Rauf, Smt. Chandrawati, Kalapnath, Saiful, Kalika, Algu, Parsadi and Smt. Mewati who had received injuries at the hands of the, miscreants were medically examined by Dr. S.S. Srivastava (P.W. 2) at Sadar Hospital Azamgarh on July 12, 1962 between 4 to 6 p.m. and all of them were found to have received injuries. In the opinion of the Doctor, Abdul Rauf, Kalika, Algu and Parsadi had gunshot injuries while others had received injuries either from a blunt object or from friction. The duration of the injuries almost synchronised with the time of the occurrence. 5. Dukharan and Bhandari were arrested by Sub-Inspector Ram Kinker Singh on August 3, 1963 and were brought under cover to the police station Kotwali. From there they were escorted in the same condition by constable Ram Sumer (P.W. 21) to the District Jail Azamgarh. Both these witnesses have stated that so long as these accused were in their custody or at the police station, none had an opportunity to see their faces. Constable Ramdutt Singh (P.W. 14) arrested Gulai on August 16, 1962 at 5.30 p.m. in village Khojapur and from there brought him to the police station Kandharapur. Gulai was subsequently taken to the District Jail Azamgarh on the next date in the same condition by the same constable who had stated that no opportunity was allowed to any witness to see any accused. 6. Sub-Inspector Ram Sunder Tewari of Kotwali police arrested Ganpat on August 16, 1962 and brought him under cover to police station Kandharapur on the same date. Ganpat was taken to the District Jail on August 16, 1962 by constable Jaleshwar Upadhya (P. W. 16) under cover. Their evidence is that so long as Ganpat was in their custody or at the police station none had the opportunity to see his face. Ram Dhan was arrested by constable Ramdutt Singh (P.W. 14) on July 30, 1962 and brought to police station Kandhrapur under cover. Their evidence is that so long as Ganpat was in their custody or at the police station none had the opportunity to see his face. Ram Dhan was arrested by constable Ramdutt Singh (P.W. 14) on July 30, 1962 and brought to police station Kandhrapur under cover. He was taken to jail on the next day by the same constable in the same condition and was not shown to any prosecution witnesses during the period. 7. The Investigating Officer searched the house of Dulare in his absence but in the presence of his wife Smt. Sampatia on July 30, 1962 and recovered one Dari, one Chadar and one Dhoti from a locked room of his house. He prepared a sketch map of the house and put the recovered articles in a sealed cover which were deposited at police station on July 30, 1962. 8. Sri P.N. Sharma,. Magistrate 1st Class, (P.W. 18) conducted the identification proceedings of Dukharan, Bhandari, Ramdhan, Gulai and Ganpat in the District Jail on August 25, 1962. He also held the test identification of the articles recovered from the house of Dulare in his court on September 13, 1962. On receipt of the result of the identification proceedings the appellants were sent up for trial. 9. At the trial, the appellants pleaded not guilty to the charges. Badri, Kalpu, Moti and Chaudhari asserted that they had been named by the prosecution witnesses under the influence of one Daisingar who was the Karinda of Fazal Babu an ex-zamindar of the village with whom they were on inimical terms. The case of the appellants whose conviction is based on the identification evidence was that they had been shown to the prosecution witnesses by the police. None of the appellants, however, examined any witness in defence. Some of the appellants have filed some documents in defence but none of them have examined any oral evidence. 10. The case of the prosecution rests on the testimony of complainant Ram Badan, Algu, Kalap Nath, Kalika, Parsadi, Pheku, Mewati, Chandrawati and the rest who have been examined as eyewitnesses of the occurrence. The other evidence produced in the case is only of formal character. 11. 10. The case of the prosecution rests on the testimony of complainant Ram Badan, Algu, Kalap Nath, Kalika, Parsadi, Pheku, Mewati, Chandrawati and the rest who have been examined as eyewitnesses of the occurrence. The other evidence produced in the case is only of formal character. 11. The testimony of these eye-witnesses as corroborated by the medical evidence on record leaves no room for doubt that a dacoity was committed at the house of the complainant, as suggested by the prosecution, in which a large number of villagers and also the ladies of the house had received injuries at the hands of the dacoits and considerable amount of movable property in the shape of ornaments and clothes had been ransacked by the dacoits. 12. Learned counsel for the appellants has not raised any challenge to the factum of the dacoity and I hold that it had been established beyond any doubt. 13. Learned counsel for the appellants has, however, strenuously contended that there was no opportunity for the witnesses to have.marked the features of the miscreant's at the time of the dacoity and the identification evidence is, therefore, unreliable. I do not find any substance in this argument. 14. All the eye-witnesses except Ram Badan and Pheku have received injuries which shows that they had come close to the dacoits. The two ladies Smt. Mewati and Chandrawati were going to sleep in the inner courtyard of the house where a burning lantern was hanging. Both of them had stated that the dacoits had snatched away ornaments from their person whom they had identified. The medical evidence shows that Chandrawati had received an abrasion each on the lobes of her right ear and on her right wrist which are typical injuries to have been caused to her in all likelihood when an attempt was made to deprive her of the ornaments which she was wearing on her ears and wrists. 15. The villagers had come and stood in front of the house of Pheku. The trial court which had made an inspection of the spot has observed that the dacoits standing in the outer courtyard of the complainant would be clearly visible from the place where most of the witnesses had stood at the time of the occurrence. It has been established that some of these villagers had torches with them which they had constantly flashed towards the dacoits. It has been established that some of these villagers had torches with them which they had constantly flashed towards the dacoits. Several bundles of dried sugarcane leaves were put on fire at a place about 40 to 50 paces away from the courtyard of the complainant which must have produced sufficient light. In the circumstances, I am satisfied that the finding of the trial court that the eye-witnesses had sufficient opportunity to mark the features of the miscreants in the light produced from various sources is justified on the evidence on record. 16. It is now necessary to discuss the cases of the accused individually. Badri, Kalpu, Moti and Chaudhari. 17. These appellants have been named by all the eye-witnesses of the occurrence to have participated in the commission of the crime. They are the residents of a neighbouring village. 18. It seems that knowing full well that the male members of the house had gone out in the marriage party, they tried to take advantage of the situation -for committing this dacoity. Nothing has been pointed out as to why these witnesses who have no personal axe to grind against anyone of these appellants would have falsely implicated them. The fact that the names of the dacoits were shouted out by the ladies, which gave information to the complainant , about the occurrence of the dacoity, is highly significant. This shows that not knowing that the complainant had not joined the marriage party of his brother, they entered his house and tried to deprive the ladies of their ornaments and in that attempt the ladies shouted out their names. 19. Learned counsel for the appellants has invited my attention to Ex. Kha-6, copy of the judgment dated August 2, 1949 which shows that Sukhu father of Badri, Bahadur father of Moti and Usari father of Chaudhari were prosecution witnesses against one Dalsingar under Section 379 I.P.C. 20. Learned counsel has urged that it appears that because of this enmity Dalsingar has persuaded the complainant and his family members to falsely implicate these appellants in a charge of dacoity. I do not find any substance in this contention. Learned counsel has urged that it appears that because of this enmity Dalsingar has persuaded the complainant and his family members to falsely implicate these appellants in a charge of dacoity. I do not find any substance in this contention. Simply because the fathers of Badri, Moti and Chaudhari had appeared as prosecution witnesses 13 years ago in a criminal case against one Dalsingar, it cannot be assumed that Dalsingar must have prevailed upon the complainant and other eye-witnesses to falsely implicate these appellants when there is neither any evidence nor any circumstance on record to show that either Dalsingar had any particular affinity with anyone of the eye-witnesses or exercised any influence over them. In that case there were six more persons standing .trial along with Dalsingar, but because Dalsingar happened to be the Karinda of the ex-Zamindar of the village, it appears that these appellants thought it proper to take advantage of the judgment in their vain attempt to show that they had been falsely implicated at his instance. I have read the testimony of the eye-witnesses with care. I am satisfied that so far as these appellants are concerned, the prosecution has succeeded in establishing the charge of dacoity against them beyond any doubt. 21. Dukharan, Bhandari, Ram Dhan, Ganpat and Gulai. These five appellants have been convicted on the basis of identification evidence. Each one of them was identified both in the parade and at the trial by more than two witnesses. Learned counsel for the appellants has, however, contended that the circumstances appearing on the record clearly indicate that the investigating agency had sufficient opportunity for showing these appellants to the prosecution witnesses and also that the prosecution version of their arrest from a particular place on a particular date is incorrect. Learned counsel urges that in view of this circumstance no reliance can be placed on the evidence of identification and that these appellants are entitled to benefit of doubt. I find force in this contention. 22. It has come in evidence of the Investigation Officer (P.W. 25) that Bhandari and Dukharan were being prosecuted by the police of Kandhapur in two other cases which were pending before a court of the Magistrate even on the date of their arrest. He has also admitted that he used to go to attend the court in connection with the pairvi of those cases. He has also admitted that he used to go to attend the court in connection with the pairvi of those cases. He however denied that he had got these appellants shown to the prosecution witnesses when they came to court on the dates fixed in those cases. Ex. Kha-9 is the certified copy of the ordersheet of the court of the Judicial Officer, Phulpur from July 12, 1962 to August 3, 1962 in Sessions Trial No. 61 of 1962. This srows that the first date in the case fixed before the Magistrate was July 12, 1962 when the accused presented themselves before the court. Thereafter July 21, July 23, July 24, July 25 and lastly August 3, were the dates fixed in the case. On August 3, the statements of Dukharan and Bhandari were recorded by the Magistrate. 23. According to the prosecution, Dukharan and Bhandari were arrested by Sub-Inspector Ram Kinker Singh (P. W. 20) from Village Sidhari. Ram Kinker Singh has stated that he had come to know the complicity of these appellants in the present crime on August 1, 1962. In view of this circumstance, the fact that these appellants had been attending the court on various dates in the month of July in a case from the same police station, the possibility of their having been shown to the prosecution witnesses by the police cannot be ruled out. Their arrest from a place outside the court premises on the August 3, 1962 which was the date in their case is also very probable and as they assert, the prosecution allegation that they were arrested from' village Sidhari in all probability is in correct. Their identification by nine witnesses out of ten also points out that they had been shown to the prosecution witnesses. They are, therefore, entitled to acquittal. 24. Gulai is said to have been arrested by constable Ramdutt Singh (P.W. 14) on August 16, 1962 at 5.30 p.m. The appellant has stated that he was arrested inside the court compound when he had come to attend a case and not from village Khojapur as alleged by the prosecution. His further case was that he had been shown to the prosecution witnesses. Ex. His further case was that he had been shown to the prosecution witnesses. Ex. Kha-3 is a certified copy of the application dated August 16, 1962 filed by Bui Bui in the court of the judicial magistrate in a pending case in which an allegation was made that Gulai who was also an accused in that case was arrested at about 1 p.m. by the two constables of Kandharapur police station. In view of the allegation made in this application which appears to have been presented on 16th of August before the Magistrate during court hours, the prosecution case regarding the arrest of this appellant at 5.30 p.m. on the same date from a distant village has become highly suspect with the result that the appellant has to be given the benefit of doubt. 25. In view of the circumstances enumerated above which have made the identification proceedings in respect of the above-noted appellants highly suspect. I am of the opinion that the conviction of the other appellants on the basis of the identification evidence cannot be sustained. In the case of Satya Narain v. The State, A.I.R. 1953 , All. 385 it has been held by Hon'ble Desai, J., as he then was, that "if the identification appears to have been induced by any suggestion or other means, the Court should not hesitate to quash any conviction which follows, particularly when justice depended upon the identification of the accused. 26. In this case it is apparent that in respect of some of the appellants the defence has succeeded in establishing that the identification evidence has not been fair and the case of the prosecution about the time and date of their arrest' has not been proved beyond any reproach. Therefore, the other two appellants Ganpat and Ram Dhan cannot be convicted on the basis of such type of identification evidence. 27. Dulare. He has been convicted under Section 412 I.P.C. on account of recovery of Dari, a Chadar and a Dhoti from his house. The Dari recovered tallies exactly with item No. 3 of the list of stolen properties. These pieces of clothes were identified by Ram Badan, Smt. Mewati and Smt. Chandrawati as belonging to them whose transfer was effected during the commission of the dacoity at their house. I am, therefore, satisfied that they were properties stolen from the house. The Dari recovered tallies exactly with item No. 3 of the list of stolen properties. These pieces of clothes were identified by Ram Badan, Smt. Mewati and Smt. Chandrawati as belonging to them whose transfer was effected during the commission of the dacoity at their house. I am, therefore, satisfied that they were properties stolen from the house. Even then the question remains as to whether Dulare can be considered to have been found exclusively in possession of these properties. It is in evidence that Dulare was not present when these articles were recovered from his house and the key of the room was handed over by his wife Sampatia who was an accused before the trial court but was acquitted. The house was shared by the father of Dulare also. In the circumstances, it cannot be held that Dulare alone was found in exclusive possession of the articles recovered from the house. 28. As a result, I set aside the convictions and sentences of the appellants Dukharan, Bhandari, Ram Dhan, Ganpat, Gulai and Dulare. 29. The convictions and sentences of I Badri, Kalpu, Moti and Chaudhari are, however, affirmed and their appeals are dismissed. They are on bail. Their bail-bonds are cancelled. They must surrender forthwith to serve out their sentences.