JUDGMENT J. N. Takru, J. - These are three connected appeals. Criminal Appeal No. 766 of 1954 is by Chandra Bali, while Criminal Appeal No. 790 of 1964 is by Brij Bhushan and Criminal Appeal No. 2659 of 1964 is by Prem Singh, Brij Bhushan and Chandra Bali. Ail these appeals are directed against the appellants conviction and sentences of 8 years R. I. each under Section 395 I.P.C. and Brij Bhushans appeal is also directed against his alternative conviction and sentence of 8 years R. I. under Section 412 I.P.C. Criminal Appeal No. 2659 of 1964, is material only as regards Prem Singh, as the other two appellants have also filed represented appeals. One Barati Lal was also prosecuted, convicted and sentenced along with the appellants, but he appears to have submitted to the orders passed against him and we are, therefore, not concerned with him in these appeals. 2. The case for the prosecution stated briefly is as follows: P.W. 1 Smt. Jagdeshwari Singh was a lecturer at the Government Intermediate College, Bara Banki in the year 1959. On April 9, 1959 she left for Jhansi via Lucknow by the Dehra Dun Express. At Lucknow she changed into ladies compartment of the 108 Up passenger at 8 p.m. for continuing her journey at Jhansi. When the train left Kanpur at 11-35 p.m. there were only two other passengers with her in that compartment. One of them was P.W. 10 Smt. Raisan with a girl aged 3 years while the other was putting on burqa. At 12-5 a.m. the train reached Bhimsen and after stopping there for 3 minutes it resumed its journey. After the train had gathered speed the woman who was putting on burqa got up and opened one of the doors of the compartment, and let in Chandra Bali, Prem Singh, Brij Bhushan and one other person. Chandra Bali was armed with a pistol, and Brij Bhushan and the unknown person were armed with a knife each. Thereafter the dacoits aimed their weapons at P.W. 1 Smt. Jagdeshwari Singh and P.W. 10 Smt. Raisan while Prem Singh relieved P.W. 1 Smt. Jagdeshwari Singh of her ear tops Ex. 7. wrist watch Ex. 8, gold necklace and Rs. 66/- in cash, and P.W. 10 Smt. Raisan of her silver buttons Ex. 1, silver Challas Ex. 2, silver Bundas Ex. 5, silver pattas Ex. 7. wrist watch Ex. 8, gold necklace and Rs. 66/- in cash, and P.W. 10 Smt. Raisan of her silver buttons Ex. 1, silver Challas Ex. 2, silver Bundas Ex. 5, silver pattas Ex. 4, silver ear ring Ex. 3, gold nose pin and Rs. 6/- in cash. The dacoits then gagged the victims and put them in the lavatory. Thereafter they pulled the alarm chain and when the train stopped, they got down and escaped in the enveloping darkness. The victims managed to raise an alarm which was heard by P.W. 3 Moti Lal Jha, the guard of the train and some other people and they released them. The train once again proceeded on its journey, and reached Jhansi early in the morning of April 9, 1959. At Jhansi, P.W. 1 Smt. Jagdeshwari Singh lodged the written first information report, Ex. Ka-1, at the G.R.P. Station at 7 a.m. the same day. In this report the incident was described substantially as stated above. As the culprits were not known, they were not nominated in it, but it was stated that they had been seen in the light of the electric bulb burning inside the compartment and could be identified if produced. The report also contained a list of the properties belonging to P.W. 1 Smt. Jagdeshwari Singh which the dacoits had taken away. 3. After the report was lodged P.W. 12 V. B. Finch S.O. started the investigation of the case. He interrogated P. W. 1 Smt. Jagdeshwari Singh and the other witnesses and then left for Kanpur for pursuing his investigation there. The same night P.W. 1 Aftab Ahmad. S.I. Police Station Juhi on the information of an informer arrested Chandra Bali, Brij Bhushan, Barati Lal and two other persons in connection with an offence under Section 399 and Section 402 I.P.C. After their arrests the appellants were made bapurdah, and interrogated and as a result of information given by them their quarters in Govind Nagar were visited on the morning of April 10, 1959 and the wrist watch Ex. 8 was recovered from the quarter of Chandra Bali, the tin box Ex. 0, containing the silver buttons Ex. 1, the silver Challas Ex. 2, the silver Bali Ex. 3, the silver pattas Ex. 4 and the silver Bundas Ex. 5 were recovered from the possession of Brij Bhushan and the gold ear tops Ex. 8 was recovered from the quarter of Chandra Bali, the tin box Ex. 0, containing the silver buttons Ex. 1, the silver Challas Ex. 2, the silver Bali Ex. 3, the silver pattas Ex. 4 and the silver Bundas Ex. 5 were recovered from the possession of Brij Bhushan and the gold ear tops Ex. 7 were recovered from the possession of Prem Singh; and their participation in the dacoity in question came to be known. All the recovered articles were duly sealed on the spot after their recovery memoranda were prepared by the late Horam Singh S. I. in the presence of P.W. 6 Om Prakash Arora, P. W. 11 Ram Nagpal and the late Manna Singh or Punna Singh. Thereafter the arrested persons and the articles recovered from their possession were taken to the police station and from there the former were taken baparda to the District Jail, Kanpur and lodged there on the following day at 6 p.m. As their complicity in the present dacoity had come to be known earlier, information about it was conveyed to the Jhansi police. The appellants were put up for test identification in that jail on May 20, 1959 and Chandra Bali and Prem Singh were identified by P.W. 1 Smt. Jagdeshwari Singh. The articles recovered from the possession of the appellants were also put up for identification on May 22, 1959, and the gold ring Ex. 5, the gold ear tops Ex. 7 and the wrist watch Ex. 8 were identified by P.W. 1 Smt. Jagdeshwari Singh and the remaining silver ornaments were identified by P.W. 10 Smt. Raisan. After completing the investigation P.W. 13 Sohan Lal, S. I. who had taken over the investigation from P.W. 12 V. B. Finch in the beginning, of May 1959 submitted a charge-sheet against the appellants and they were, in due course, committed to the court of sessions to face their trial. 4. The appellants pleaded not guilty and denied the recoveries alleged to have been made from their quarters. Chandra Bali and Prem Singh stated that they were shown to P.W. 1 Jagdeshwari Singh after their arrests. All of them stated that they were falsely implicated by P.W. 8 Aftab Ahmad with whom they had enmity and Chandra Bali further attributed his false implication to Sayeed Ahmad who was a great friend of P.W. 8 Aftab Ahmad. 5. Chandra Bali and Prem Singh stated that they were shown to P.W. 1 Jagdeshwari Singh after their arrests. All of them stated that they were falsely implicated by P.W. 8 Aftab Ahmad with whom they had enmity and Chandra Bali further attributed his false implication to Sayeed Ahmad who was a great friend of P.W. 8 Aftab Ahmad. 5. The prosecution examined 13 witnesses to prove its case while out of the appellants Chandra Bali produced 8 witnesses and Brij Bhushan produced one witness in their defence. The learn-trial Judge rejected the defence evidence and finding that of the prosecution satisfactory, held that it had succeeded in proving its case beyond any reasonable doubt. 6. Sri S. N. Mulla, learned counsel for Chandra Bali, Sri T. Rathore, learned counsel for Brij Bhushan and Sri Arvind Kumar, learned counsel for Prem Singh, did not contest the factum of the dacoity before me, and their main contentions were that, as the evidence regarding the identification of Chandra Bali and Prem Singh., and the evidence of the recovery of the various articles from the alleged possession of the appellants and their identification by P.W. 1 Smt. Jagdeshwari Singh and P.W. 10 Smt. Raisan, were not such as to inspire confidence, the appellants were entitled to acquittal. After hearing the learned counsel. I am satisfied that the first two contentions in the case of all the appellants and the third contention in the case of Brij Bhushan and Prem Singh, have no force and the appeals of Brij Bhushan and Prem Singh are, consequently, liable to dismissal. The third contention in regard to Chandra Bali, however, has force and he is entitled to acquittal on that score. I shall, therefore, proceed at once to record my reasons for coming to those conclusions, and for that purpose shall begin with the point, which is common to all the appeals, i.e. the evidence of the recovery of the various articles from the possession of the appellants, and their identification by P.W. 1 Jagdeshwari Singh and P.W. 10 Smt. Raisan. 7. Now the evidence on the question of the recovery of the looted articles from the possession of the applicants, consists of the testimony of P.W. 8 Aftab Ahmad S.I., P.W. 6 Om Prakash Arora and P.W. 11 Ram Nagpal. 7. Now the evidence on the question of the recovery of the looted articles from the possession of the applicants, consists of the testimony of P.W. 8 Aftab Ahmad S.I., P.W. 6 Om Prakash Arora and P.W. 11 Ram Nagpal. As the evidence of P.W. 8 Aftab Ahmad shows that he did not go inside the quarters of the appellants, from where the recoveries were allegedly made, his evidence in regard to those recoveries is of no, avail to the prosecution. It will be remembered that the recoveries, according; to the prosecution were made by Horam Singh, S.I., and it was he, who prepared the identification memoranda thereof. The evidence of P.W. 8 Aftab Ahmad shows that Horam Singh, S.I. died in 1961, and he could not, therefore be produced to prove the recoveries and their recovery memoranda. However P.W. 8 Aftab Ahmad, was very were acquainted with his hand-writing and signature, and he was, therefore able to prove that the various recovery memoranda were prepared by him. As this part of his (P. W. 8 s) statement has not been challenged in his cross-examination, there is no Reason to suppose that the said recover y memoranda were not prepared by memoram Singh, S.I. and the same must consequently be held to be duly proved. So far as the actual recoveries are concerned the prosecution produced two, out of three, public witnesses, who are alleged to have witnessed it the third having died during the pendency of the trial. They are P.W. 8 Om Prakash Arora and P.W. 11 Ram Nagpal. At the trial, however, both these witnesses denied their witnessing the searches and recoveries as alleged by the prosecution. They admitted that they signed the recovery memoranda, but stated that their signatures thereon were obtained by the police subsequently at the police station. P.W. 6 Om Prakash Arora was confronted with the statement made by him before the police, and was asked what he had to say about it. He denied having made it, and stated that he could not say how it had come to be recorded. His statement, therefore, is of no help to the prosecution, and was rightly ignored by the learned trial Judge. In the case of P.W. 11 Ram Nagpal, however, since he had been examined in the committing court, he was confronted with the statement made by him there. His statement, therefore, is of no help to the prosecution, and was rightly ignored by the learned trial Judge. In the case of P.W. 11 Ram Nagpal, however, since he had been examined in the committing court, he was confronted with the statement made by him there. He admitted making that statement, but stated that it was false and was made at the asking of the police. As his statement in the trial court was diametrically opposed to the statement made by him before the committing Magistrate, the learned trial Judge brought the latter statement on the record under Section 288. Cr.P.C. and used it as substantive evidence of the recovery. In my opinion the provisions of Section 288 Cr.P.C. could not. have been made use of in a more proper case than the present. The explanation given by this witness for signing, the various recovery memoranda, and for making, what he calls, a false statement in the committing court, do not appeal to reason, and clearly go to show that some extraneous influence must have been brought to bear upon him to make him resile from his previous statement. In this connection it is important to remember that his statement in the committing court was recorded sometime in the last quarter of 1959, while his statement in the trial court was recorded on February 28, 1964. There was thus a long gap of five years between the two examinations. Having regard to the fact that he used to live in the same mohalla as the appellants, I am not at all surprised if he was prevailed upon or induced to go back upon his earlier statement by interested parties. In the trial court he stated that he signed the recovery memoranda, and made the false statement in the committing court, at the asking of the police. He, however, gave no reason why he agreed to do both these things at the bidding of the police, nor is there anything in his evidence to show that he had run foul of the law or had done some other undesirable thing as a result of which he had put himself in the clutches of the police. He, however, gave no reason why he agreed to do both these things at the bidding of the police, nor is there anything in his evidence to show that he had run foul of the law or had done some other undesirable thing as a result of which he had put himself in the clutches of the police. Assuming, however, that he was under the thumb of the police, then there is nothing to show what happened, after his statement in the committing court was recorded, to make him shake off their control and influence. It is further to be remembered that if the police wanted to fake recoveries then they would not have chosen a doubtful person like this witness, for that purpose but would have picked out some one on whom they could depend implicitly. I, therefore, agree with the learned trial Judge that the statement made by P.W. 11 Ram Nagpal in the committing court is his true statement, with the result that the various recoveries from the appellants must be held to have been satisfactorily established. 8. I shall now deal with the evidence of identification as it logically falls for consideration next. As stated earlier Chandra Bali and Prem Singh were identified by only one witness viz. P.W. 1 Jagdeshwari Singh. Learned counsel for these appellants contended that having regard to the facts (1) that P.W. 12 V.B. Finch, the Investigating Officer, had reached Kanpur on the evening of April 9, 1959, and had come into contact with P.W. 8 Aftab Ahmad, and (2) that, on the prosecutions own showing, all the appellants were in the police lockup from the morning of April 10, 1959 till the noon of April 11, 1959, it was the easiest thing for P.W. 12 V.B. Finch and P.W. 8 Aftab Ahmad to have sent for P.W. 1 Smt. Jagdeshwari Singh and P. W. 8 Smt. Raisan from Jhansi and to have shown the appellants to them. P. W. 8 Aftab Ahmad, P.W. 12 V.B. Finch and P.W. 1 Smt. Jagdeshwari Singh denied that suggestion, and as there is nothing on the record to show otherwise there is no reason to doubt their denials. P. W. 8 Aftab Ahmad, P.W. 12 V.B. Finch and P.W. 1 Smt. Jagdeshwari Singh denied that suggestion, and as there is nothing on the record to show otherwise there is no reason to doubt their denials. No doubt there was some delay in lodging the appellants in jail, for which P.W. 8 Aftab Ahmad has given the explanation that as April 10 and 11, 1959 were Id holidays, and there was a shortage of police men, the arrested persons a could not be sent to jail till after midday on the latter date. The explanation cannot be held to be an unreasonable one. There is thus no good reason for holding that the appellants were shown to the witnesses just because there was some time in which they could have been shown to them. Besides the result of the identification is itself sufficient to expose the hollowness of this contention. It will be remembered that the appellants were arrested sometime in the night between April 9 and 10, 1959, and their identification took place in jail on May 22, 1959, i.e. about six weeks after their arrests. If it had been a fact that the police had shown them to P.W. 1 Smt. Jagdeshwari Singh and P.W. 10 Smt. Raisan, then it is not easy to understand why the latter was not able to identify any of the accused, and P.W. 1 Smt. Jagdeshwari Singh was able to identify only two of the accused, particularly when, the identification proceedings took place so soon after the appellants arrest. No doubt from the judgment of the case which was started under Sections 399 and 402 I.P.C. against Chandra Bali and some others the former has succeeded in showing that there was bad blood between him and P.W. 8 Aftab Ahmad, but that fact by itself would not render his testimony in this case unreliable if it is otherwise found to be satisfactory. I am, therefore, unable to accept this contention either, and, consequently, reject it. I shall now proceed to deal with the individual cases of the appellants beginning with the case of Chandra Bali. 1. Chandra Bali. The only property which is said to have been recovered from his possession is the wrist watch Ex. 8. The identification proceeding in respect of this watch was conducted by P.W. 2 R.P. Dangwal, a First Class Magistrate. 1. Chandra Bali. The only property which is said to have been recovered from his possession is the wrist watch Ex. 8. The identification proceeding in respect of this watch was conducted by P.W. 2 R.P. Dangwal, a First Class Magistrate. The identification memorandum, which he prepared on that occasion (Ex. Ka.-17) refers to this watch as just a wrist watch and does not contain any further description thereof. No doubt in the footnote the said watch is stated to have been mixed with watches similar in appearance to it. But a perfunctory description of this kind has not been held by this court to be sufficient to inspire confidence in the identification proceedings. It was the duty of the Magistrate to have mentioned the peculiar features of the watch, which had to be identified, in the identification memorandum, and if he had done so, then the mention in the foot-note that the watches which were mixed with it were similar to it, would have sufficed, and no exception could have been taken to the fairness of the identification proceedings. Unfortunately however the failure to mention in the peculiar features of the wrist watch, Ex. 8, in the identification memoranda renders its identification by P.W. 1 Smt. Jagdeshwari Singh as her watch, of no probative value. I am fortified in my view by the observations made by a Division Bench of this Court in State v. Ram Autar, AIR 1955 Allahabad 138. In that case the conviction of two of the accused was based on evidence of identification. Both these accused had small-pox marks on their faces, and the Magistrate conducting their identification forgot to make a note of that peculiarity in the identification memorandum. In the trial court, the Magistrate concerned tried to make good that omission by stating that they were mixed with people who also had smallpox marks on their faces. This Court did not accept the statement of the Magistrate, observing that any competent Magistrate having experience of any identification proceedings would have made a note about it if he had really seen that mark. With these observations the identification evidence in that case was rejected as unworthy of reliance. This Court did not accept the statement of the Magistrate, observing that any competent Magistrate having experience of any identification proceedings would have made a note about it if he had really seen that mark. With these observations the identification evidence in that case was rejected as unworthy of reliance. Thus in the aforesaid case the omission to mention a distinctive peculiarity of the accused in the identification memorandum-although it also contained a note to the effect that the persons mixed with them were similar in appearance etc.-was held to be fatal to the prosecution case. Substitute the word Tudor in place of "small-pox marks" in State v. Ram Autar, A.I.R. 1959 A.P. 387 and it would not be possible to find anything to distinguish that case from the case before us. In these circumstances the identification of the wrist-watch, Ex. 8 by P.W. 1 Smt Jagdeshwari Singh, who is a literate lady and knows English very well, cannot but fail to inspire confidence. On behalf of the State, it was, however, contended that even if the identification proceedings in respect of the watch, Ex. 8, were disregarded, the prosecution case would not be affected adversely since the said watch was identified by P.W. 1 Smt. Jagdeshwari Singh in court also and legally it was the identification in court which mattered. In support of this contention he relied upon the decision in In re Gundla Narayan and others, A.I.R. 1959 A.P. 387. No doubt in this case there is a sentence which favours the aforesaid contention, but since our Court has always, as a rule of caution, insisted upon a test identification, as a condition prerequisite to the attaching of value to the identification in court-of which the case of State v. Ram Autar, A.I.R. 1959 A.P. 387 is the latest exemplar-I am unable, with the utmost respect to the learned Judges of the Andhra Pradesh High Court, to agree with their view. Thus for the reasons stated above, the evidence of identification of property against Chandra Bali cannot be viewed with confidence, and has to be ignored from consideration. The exclusion of this piece of evidence leaves only the evidence of the identification of one witness, namely P.W. 1 Smt. Jagdeshwari Singh, against this appellant, which is not sufficient to warrant his conviction. The exclusion of this piece of evidence leaves only the evidence of the identification of one witness, namely P.W. 1 Smt. Jagdeshwari Singh, against this appellant, which is not sufficient to warrant his conviction. The conviction and sentence of this appellant cannot, therefore, be sustained and have to be set aside. 2. Prem Singh. From the possession of this appellant the gold ear-tops, Ex. 7, were recovered. These ear-tops were also put up for identification in the same identification parade in which the wrist watch, Ex. 8, was put up for identification, and it was identified by P.W. 1 Smt. Jagdeshwari Singh as her property. The ear-tops, Ex. 7, are described in the identification memorandum as gold ear-tops studded with red stones, and having a weight of 4 annas, and they are stated to have been mixed with three other similar gold ear-tops. There is thus no defect in the identification proceedings relating to this article as in the case of the wrist watch, Ex. 8. The evidence of identification of the gold ear-tops, Ex. 7, recovered from the possession of Prem Singh must, consequently, be held to be above reproach, and as, in addition, this appellant has been identified by P.W. 1 Smt. Jagdeshwari Singh as one of the dacoits, his conviction and sentence are correct, and have to be upheld. 3. Brij Bhushan. The only evidence against this appellant is that of the recovery of the silver ornaments Ex. 1 to 5 from his possession. Four of these articles were also 1 put up for identification in the same parade in which the wrist watch, Ex. 8, and the gold ear-tops, Ex. 7, were put up for identification. All these articles have also been described in detail, in the identification memorandum. They were mixed with three similar articles each, I and were identified by P.W. 10 Smt. Raisan as her property, which the dacoits took away on the night of the dacoity. Learned counsel contended that as P.W. 10 Smt. Raisan, in her evidence, Stated that each of these articles was mixed with only one other article of the same kind, their identification by P.W. 10 Smt. Raisan was not such as to inspire confidence. I do not agree, (1) because I am not prepared to place reliance upon her statement on this point in preference to the recitals contained in .the identification memorandum, Ex. I do not agree, (1) because I am not prepared to place reliance upon her statement on this point in preference to the recitals contained in .the identification memorandum, Ex. Ka-17, and the evidence of P.W. 2 R.P. Dangwal, the Magistrate concerned. The latter had no reason to make a wrong note in the identification memorandum, or to falsely depose in regard to it in the trial court. It seems to me that full advantage was taken by the accused, or their friends and well-wishers, of the long interval that elapsed between the incident and the trial, to win over as many prosecution witnesses as possible, including P.W. 10 Smt. Raisan. In this connection I might however mention that even if the statement of P.W. 10 Smt. Raisan, that each of the articles to be identified was mixed with only one other similar article, were accepted as correct, even then her identification evidence would have great value, as she was able to identify all the four articles which were put up for identification without making any mistake. It is too much to expect that four correct identifications in a row, even if each of the articles to be identified was mixed with only one similar article, would be due to mere chance. Thus even if the evidence of P.W. 10 Smt. Raisan is accepted her identification evidence would be entitled to great weight. Learned counsel then contended that even if the aforesaid evidence were accepted, the only offence which can be held to have been made out against this appellant is one under Section 411 I.P.C. I do not agree. As on the evidence on the record the looted articles were recovered from the possession of this appellant within 30 hours of the dacoity, that is to say within such a short time thereof that he could not have come by them by transference from some one else, the learned trial Judge was right in holding him as one of the dacoits, and in convicting him under Section 395 I.P.C. and, in the alternative, under Section 412 I.P.C. I am, therefore, satisfied that the conviction and sentences of this appellant have also been correctly recorded, and his appeal must also fail, imprisonment. The result, therefore, is that the conviction and sentence of Chandra Bali are set aside, and his appeal is allowed. The result, therefore, is that the conviction and sentence of Chandra Bali are set aside, and his appeal is allowed. He was granted bail for the pendency of his appeal. He need not surrender and his bail bonds are hereby discharged. The conviction and sentences of the other two appellants are, however, affirmed and their appeals are dismissed. Brij Bhushan was also granted bail for the pendency of his appeal. He shall surrender forthwith and serve out the sentence imposed upon him. Prem Singh is already in jail. He shall remain there and serve out the sentence imposed on him.