ORDER S.N. Katju, J. - Balwant, Ram Lal and Pooran have preferred appeal No. 1217 of 1963 and Than Singh has preferred appeal No. 1572 of 1963 from jail. The appeal of Ram Lal, Balwant and Pooran was admitted by this Court on the question of sentence only. The appeal of Than Singh was admitted later with the direction that it should be connected with the earlier appeal of Ram Lal and others. 2. The Appellants were arrested in a field near village Bhagwantpur, district Etah at about 8.30 p.m on March 1, 1962. It was alleged that P.W. Durga Prasad was going from his field near village Bhagwantpur to his own village at about 8 p.m. when he crossed a canal bridge which was in the way and proceeded about a furlong away from the bridge, he saw seven or eight persons sitting close to a bush adjacent to the canal road. On approaching nearer he heard the aforesaid persons talking about some theft or dacoity (Kuchh chori dakaitiki baat). He accidentally met a police patrolling party consisting three constables headed by jai Narain Shukla close to village Bich ka Nagla. Durga Prasad informed constable Jai Narain Shukla about what he had seen and heard. Thereupon constable Jai Narain Shukla called P.Ws. Hardco and Ram Singh to join the police party in apprehending the Appellants. Hardeo had a licensed gun with him. When the police party approached village Bhagwantpur which is about two furlongs from Bich ka. Nagla they were joined by Sri Ram, Hukum Singh and Soran Singh. Shri Ram also had a licensed gun with him. The usual fromalities of search were alleged to have been conducted by Sri Jai Narain Shukla when the party reached the spot pointed out by P.W. Durge Prasad. It was alleged that when the police party was at a distance of about 8 or 10 paces from the spot where the Appellants were sitting along with certain other persons, the latter said among themselves that their companions had arrived. This further convinced the police party that the Appellants and their compainions had collected for the purpose of committing dacoity. Jai Narain Shukla then challenged the Appellants and their companions and the latter fired on the Appellants. There was some exchange of fire between the alleged dacoits and the police but no body was hurt. This further convinced the police party that the Appellants and their compainions had collected for the purpose of committing dacoity. Jai Narain Shukla then challenged the Appellants and their companions and the latter fired on the Appellants. There was some exchange of fire between the alleged dacoits and the police but no body was hurt. Three or four persons managed to escape and the four Appellants were apprehended on the spot. One double barrel pistol with four live cartridges were recovered from the possession of Ram Lal and one pistol and three live cartridges were recovered from the possession of Pooran. One torch, a lathi and an implement of house breaking was recovered from the possession of Than Singh. One lathi, a match box and a bundle of biris and an implement of house breaking were recovered from the possession of Balwant. A recovery list was made on the sopt by constable Shukla and it was signed by P.Ws. Durga Prasad, Hardeo Singh, Ram Niwas, Ram Singh and Shri Ram. Four empty cartridges were also found on the spot and the recovery list of the same were prepared which was signed by P.W. Hardeo Singh, Durga Prasad, Ram Niwas, Hukum Singh, Shri Ram and Ram Singh. Furthermore, two cycles were also said to have been recovered from the place where the alleged dacoits were sitting. 3. The Appellants were charged under Sections 399 and Section 402 of the Indian Penal Code. The Appellants Ram Lal and Pooran were further charged u/s 10 of the Indian Arms Act. 4. The Appellants contended that they were residents of Aligarh district and had been arrested from their respective houses which were not far from village Bhagwantpur and were prosecuted falsely. The court below relying on the prosecution evidence convicted all the four Appellants u/s 309 I.P.C. and sentenced each of them to five years R.I. They were also found guilty u/s 402 I.P.C. and each of them was sentenced to five years R.I. Ram Lal and Pooran were further found guilty u/s 19(f) of the Indian Arms Act and sentenced to one year R.I. under that section. All the aforesaid sentences were to run concurrently. 5 The Appellants have been in jail since February 28, 1962 when they were arrested. All the aforesaid sentences were to run concurrently. 5 The Appellants have been in jail since February 28, 1962 when they were arrested. Sri Keshav Sahai, learned Counsel for the Appellant Balwant stre nuously contended that it was a matter of surprise that no identification proceedings took place in jail and thus the prosecution witnesses have not identified any of the Appellants as the persons who were apprehended on the evening of February 28, 1962, as mentioned above. There is force in this contention. It is therefore, not at all established that the Appellants were the persons who were arrested by the police on February 28, 1962 in the circumstances mentioned above. Learned Counsel further contended that it cannot be inferred from what was alleged to have been heard by Durga Prasad that the Appellants and their companions were talking of theft and dacoity. When the police party had approached the spot where the Appellants and their companions had assembled they were said to have remarked that their own men had come. From what was heard by Durga Prasad and what was said to have been said by them about the arrival of their own men, it could not be inferred that the Appellants had collected at the place, where they were apprehended, for the purpose of committing dacoity. I need not go further in this matter because the absence of identification of the Appellants is a fatal weakness in the prosecution case. It cannot be held that the Appellants were the persons who had collected at the aforesaid place for the purpose of committing dacoity. 6. The appeal for Ram Lal, Balwant and Pooran was admitted only on the question of sentence. Since I have examined the evidence in the case and have heard learned Counsel for the Appellants and the State, it is not necessary for me to restrict the consideration of the appeal of Ram Lal, Balwant and Pooran to that question only. Had it been so, I would have while maintaining their conviction sentenced them to the period already undergone. I am, however, of the opinion that it is open to me to hold that the convictions of the three Appellants cannot stand and must be set aside. Similarly I hold that the conviction of Than Singh should be set aside. 7. Had it been so, I would have while maintaining their conviction sentenced them to the period already undergone. I am, however, of the opinion that it is open to me to hold that the convictions of the three Appellants cannot stand and must be set aside. Similarly I hold that the conviction of Than Singh should be set aside. 7. The two appeals are allowed, the conviction and the sentences passed on the four Appellants are set aside and they are ordered to be acquitted. They shall be released forthwith unless required in any other case.