JUDGMENT Yashoda Nandan, J. - These are two connected appeals arising out of the same trial and we shall dispose them of by a common judgment. The appellants Nanwa, Mangu and Umrao have been convicted by the learned 1st Temporary Sessions Judge, Meerut under Section 396, I. P. C. and sentenced to imprisonment for life. They have appealed against their conviction and sentences. 2. On the night intervening the 6th and 7th July, 1963 at about 1.00 oclock an armed dacoity was committed at the house of P. W. Patram in village Kaili, in the district of Meerut and during the course of the dacoity one Dhan Singh, father of Patram was shot dead by the miscreants. A written report about the incident was lodged by P. W. 16 Kallu, Chowkidar at 4.00 a. m. at the police station Khcrkauda which is three miles from the scene of occurrence. The Station Officer Ram Chandra Singh who was present at the police, immediately proceeded to the scene of occurrence and reached there at about 6.00 a.m. He despatched the dead body for post-mortem examination, sent P. W. 18 Raghubir, who had also received injuries during the course of dacoity, for . medical examination and treatment and took the usual steps necessary for investigating the offence. 3. Autopsy on the dead body of Dhan Singh was performed by Dr. B. P. Kakkar, Medical Officer, Pyare Lal Sharma Hospital of about 2 p. m. on the 7th July, 1963. He found the following-ante-mortem injuries on the dead body : 1. Gun shot wound of entrance " x " x 2" behind right ear. 2. Gun shot wound of entry " x " on the boundary of the head. " behind the right ear. 3. Gun shot wound of entry oblong 2'' x "' below the right ear. 4. Gun shot exist wound of injury no. 31 l" x " on the face " outside the right nostril. 5. Abrasion 2" x " below injury no. 3 on the right side of the face. 6. Four gun shot wounds of entrance in an area of l" x " just behind the angle of lower right jaw each approximately " in diameter. 7. Abrasion l" x " on right scapular region. 8. Gun shot wound of entry " diameter on the right scapular region. 9. 3 on the right side of the face. 6. Four gun shot wounds of entrance in an area of l" x " just behind the angle of lower right jaw each approximately " in diameter. 7. Abrasion l" x " on right scapular region. 8. Gun shot wound of entry " diameter on the right scapular region. 9. Gun shot wound of exist of wound No. 8/" x " on the right side of neck 2" above the wind channel. 10. Gun shot wound of entrance " diameter right scapular region. 11. Gun shot of exist on the neck right " above injury no. 9. 4. On internal examination the doctor found fractures of the lower jaw right mendible under injuries nos. 3, 4 and 6. There was also comminuted depressed fracture of the skull under injuries 1 and 2 and fractures of Basi sphenoid and petrous of the temporal bone. The inembrance of the brain under injuries nos. 1 and 2 was lacrated and the brain itself had hied. The lower surface of cerebral temporal lobe and occipital was lacerated and there was blood inside. Death, in his opinion, was due to head injuries caused by the gun shot wounds. 5. P. W. 16 Raghubir was medically examined by Dr. P. R. Saxena (P.W. 8) at the Pyare Lal Sharma Hospital on the 7th July, 1963 at 12.35 p. m. The doctor found the following injuries on his person : 1. Lacerated wound " x "x bone deep on top of head. 2. Abrasion 3" x " above the right eyebrow with swelling 1" x ". 3. Contusion 2-l/2" x 1" in front of the left shoulder. 4. Abrasion " x " outer side of the left hip. 5. Contusion 5" x 1" front of left thigh. 6. Abrasion 1" x 1" outer side of the right hip. 6. Attempts by the Investigating Officer to trace out the culprits was of no avail till lie arrested Nanwa on the 15th of July 1963, from his house in village Sait Kaon. Mangu was arrested by him on the 17th of August, 1963. On the 9th of October, 1963 he succeeded in effecting the arrest of Umrao from the railway colony at Aligarh. Mangu was arrested by him on the 17th of August, 1963. On the 9th of October, 1963 he succeeded in effecting the arrest of Umrao from the railway colony at Aligarh. The Investigating Officer reported for identification proceedings of the appellants and some others, who were co-accused in the case and on the result of the test identification proceedings submitted a chargesheet leading to the prosecution of the appellants. 7. All the three appellants pleaded not guilty and denied their participation in the dacoity. Appellant Umrao claimed that he was known to the witnesses from before while the others alleged that they were shown to the witnesses while they were in the custody of the police. They all alleged different enmities as the reason for their false implication. We shall deal with their defence in greater detail when considering individual cases of the appellants. 8. The house of Patram is situate on the outskirts of village Khaili which has a population of about three thousand. Near the railway station a small abadi had grown up and there exist five or six railway quarters, two or three Ghers belonging to Tyagis and five or six houses including that of Patram belonging to some Gaarias. The house of Patram is approximately 75 yds. from the main building of the railway station. 9. The prosecution version of the dacoity may be briefly stated as follows : On the night between 6th and 7th July, 1965 P.W. 1 Patram was sleeping in eastern rooms with her three children. In the the northern portion of the Janana house courtyard with his wife and five small children. The wife of his elder brother was sleeping in front of the eastern rooms with her three children. In the southern portion of the courtyard in front of the passage from the Kachaha Dobari of the male apartment. Patrarns younger brother was sleeping on a cot and slightly to the south were sleeping Patrams mother and a married sister with her daughter. Although it was a moonlit night there were two burning lanterns suspended from the walls and both ends of the courtyard. This was necessary because it was the practice of Patram and his brother to get up at 2 or 2.30 a.in. every night to collect milk. Outside in the Mardana portion was sleeping Dhan Singh, deceased, in the courtyard. Although it was a moonlit night there were two burning lanterns suspended from the walls and both ends of the courtyard. This was necessary because it was the practice of Patram and his brother to get up at 2 or 2.30 a.in. every night to collect milk. Outside in the Mardana portion was sleeping Dhan Singh, deceased, in the courtyard. At about 1.00 in the night the dacoits who were about 12 or 14 in number and armed with lathis and Ballams and one of them carrying a country made pistol, managed to enter the house and started belabouring P. W. 16 Raghubir, who was the first in their way just in front of the Dobari door. As Raghubir was struck by the dacoits he got up from the cot with a view to get out of the house, but near the Dobari door he was struck by another miscreant. He was compelled to fall back in the Sahan where further blows were given to him. The commotion woke up Patram and those who were sleeping inside the courtyard. Patram got up and picking up a Burri (a sort of spear) rushed towards the dacoits who were in the midst of the courtyard, but had to fall back because at that time there were two shots fired behind the kitchen. Patram from the southern side and his mother and sister from the northern side started pelting brick-bats at the dacoits inside the courtyard. The brickbats had been stored for making some constructions in the courtyard. The mother and the sister also received some minor injuries and they all raised an alarm. The dacoits finding things getting hot for them retreated going out of the house through the dobari and the main door. Patram and Raghubir followed the dacoits for a few steps outside the main door but had to turn back on account of the pistol shot fired by the miscreants, who escaped going in the south-ward direction and turning east near the railway station building situate a short distance away. When Patram and Raghubir returned back to their house they found their father Dhan Singh lying dead and bleeding in the corner of the Dobari, having been shot at by the dacoits either when they entered the house or during the uproar there. When Patram and Raghubir returned back to their house they found their father Dhan Singh lying dead and bleeding in the corner of the Dobari, having been shot at by the dacoits either when they entered the house or during the uproar there. No property was lost during the incident as the dacoits had to turn back before they could collect anything. Patram and Raghubir even though they had failed to apprehend any of the dacoits had observed some of the dacoits in the light of the lantern and moon-light. 10. On account of the gun shots fired by the dacoits and the alarm raised by the inmates of the house, persons residing in the vicinity were also aroused. Lala Tyagi whose Gher adjoins the temple close to the scene of occurrence and Khacheru Tyagi whose Gher lies to the north of the temple had come out and stood inside the temple compound wall under its cover. They saw the dacoits emerging out of the house of Patram and escaping in the eastward direction. Electric light emanating from the railway station building closely provided sufficient light to Lala Tyagi and Khacheru Tyagi, who watched the dacoits from their position inside the temple compound. 11. P. W. 16 Kallu Ghowkidar of village Kaili and one Thawaria, a Chowkidav of village Panchi had for some months past been deputed for night patrol duty on a tract of five miles along the railway line to check the depredations of telegraph-wire thieves. On the night of the incident they were patrolling in the vicinity of the railway station, when they heard the noise and therefore ran into the pathway passing in front of the house of Patram and leading to the railway station. From behind the iron bars fencing the railway station they saw the dacoits escaping in the electric light. 12. The factum of dacoity cannot be doubted and has been fully established by the eye-witnesses and the recovery of the dead body of Dhan Singh and empty cartridges from the scene of occurrence. The mere fact that the miscreants had to beat a retreat when they were hard pressed by the inmates of the house and others without collecting any booty does not make the provisions of Section 395 I. P. C. inapplicable. The mere fact that the miscreants had to beat a retreat when they were hard pressed by the inmates of the house and others without collecting any booty does not make the provisions of Section 395 I. P. C. inapplicable. Section 391 I. P.C. defines dacoity as follows : "When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity". 13. Thus, the word dacoity had been defined not only where a robbery is committed by five or more persons, but where five or more persons attempted to commit an unsuccessful robbery. In the instant case the prosecution witnesses have consistently stated that the number of persons who armed, stealthily at dead night entered the house of Patram was nearly 12 or 14. They were compelled to retreat only because of the tough resistance offered by Patram and Others. 14. It has been contended by learned counsel for the appellants that even if the entire prosecution case be believed, since the dacoits had not succeeded in looting any property and one or other of the dacoits shot dead Dhan Singh only when the dacoits had abandoned the idea of committing dacoity and were bent upon escaping, the appellants could at best be convicted under Section 395 I.P.C. and not See. 396 I.P.C. The dacoit or dacoits who were responsible for the murder of Dhan Singh could alone be convicted under Section 302 I.P.C. It was urged that in this case it was not possible to hold that the murder was committed in the commission of dacoity. Reliance was placed on a Division Bench decision of this Court, Emperor v. Chander and others, 1906 All. Weekly Notes p. 47. In that case after the dacoits had been driven out of the house without carrying off any property they were pursued by the villagers. At a cattle enclosure which according to the evidence was two field distant from the scene of the attempted robbery, one of dacoits was seized by one Amar Singh, whereupon one or more of the dacoits struck Amar Singh with swords inflicting wounds which caused his instantaneous death. At a cattle enclosure which according to the evidence was two field distant from the scene of the attempted robbery, one of dacoits was seized by one Amar Singh, whereupon one or more of the dacoits struck Amar Singh with swords inflicting wounds which caused his instantaneous death. In the circumstances of that case, Knox and Aikman, JJ., took the view that at the time when Amar Singh was killed the dacoits were bent upon escaping from the village and had abandoned their intention to rob and, consequently, it could not be held that there had been murder "in so committing dacoity" and the conviction under Section 396, I. P. C. could not be sustained. The case was decided on its own peculiar facts and in our view it has to be ascertained in each case as to whether the retreat was so separated by time or space from the offence of dacoity which formed the common object of the dacoits as not to form part of it. Before we discuss the facts of this case we may mention a decision of the Bombay High Court in Queen Empress v. Sakhram, 2 Bombay L. R. 325 were the dacoity was not successful since the villagers showed a bold front and resisted the dacoits from the beginning. On the villagers collecting immediately as a result of the alarm raised the dacoits attempted to escape and after going a few yards they turned round and one of them intimidate the villagers fired a gun, the shot wounding three of the villagers and killling one. Jenkins, C.J. held :- "It has been found by the learned Judge, and I accept his finding on this point, that the murder was committed in effecting a safe retreat, so that the question is whether the retreat was separated by time or space from the offence which formed the common object of the assembly as not to form part of it. This, it is obvious, is a pure question of fact and of degree, not to be determined by any general rule, but by the special circumstances of each case. This, it is obvious, is a pure question of fact and of degree, not to be determined by any general rule, but by the special circumstances of each case. In my opinion, there was no such separation: the retreat was an essential part of the common criminal purpose ; it was a continuation of the actual dacoity while the dacoits were still acting in concert, and so closely and necessarily connected with the actual demand of khand that I think it must be taken that the murder was committed in prosecution of the common object of the assembly." 15. If we may say so we are in respectful agreement with the observations made by the learned Chief Justice that the question whether the murder was committed while committing dacoity is a pure question of fact not to be determined by any general rule but by the special circumstances of each case. A similar view was taken by a Bench of this Court in Sirajuddin v. State, A. I. R. 1951 Alld. p. 834. In that case, a number of dacoits visited village Kadhla and went into the house of one Piru Toli. The villagers on hearing the alarm that dacoits had come to the house of Piru Teli, surrounded the house and there was a free fight between the dacoits and the villagers. As a result, one villager died and four others were injured. Two of the dacoits Sirajuddin and Abhu were caught on the spot. The trial court convicted all the appellants under Section 396 I. P. C. and sentenced two of them to death and the other two to transportation for life. Before the Bench hearing the appeal it was urged that the appellants should not have been convicted under Section 396, I. P. C. but under Section 395 I.P.C. Reliance was placed on Emperor v. Chander (supra). Before the Bench hearing the appeal it was urged that the appellants should not have been convicted under Section 396, I. P. C. but under Section 395 I.P.C. Reliance was placed on Emperor v. Chander (supra). Malik, C. J, delivering the judgment of the Court held : "Coming now to the facts of this case, no attempt was made on behalf of the defence to establish that the murder was so dissociated by time or space from the dacoity that it must be held that one chapter had closed and a new chapter had begun and that only the person committing the murder could alone be held responsible for his act and that there was no common intention between him and the other members of the gang, (After discussing the evidence, the judgment proceeded) On the evidence in the case it is not possible to hold that at the time when Azimullah was killed the dacoits had abandoned the idea of committing dacoity and they murdered Azimullah only with the object of getting away." 16. This Court upheld the conviction of the appellant under Section 396 of the Indian Penal Code. 17. In Shyam Behari v. State of U. P., A. I. R. 1957 S. C. 320 the appellants and others had entered the house of Mendai with intent to commit a robbery but were foiled in the attempt owing to Mendai and Ganga having raised a hue and cry. The residents of the village and the adjoining abadi arrived on the scene and the appellant and his companions without collecting any booty ran away from the house of Mendai. They wen chased by Mendai and Ganga and when they we crossing the ditch of Pipra Farm, Mendai caught hold of one oi the dacoits and another dacoit who was identified by several witnesses at the appellant Shyam Behari thereupon fired a pistol shot which hit Mendai and Mendai died as a result of the injuries sustained. The learned Sessions Judge as also the High Court recorded concurrent findings of fact that the appellants shot and killed Mendai to secure the release to one of his companions and also to ensure their safe retreat. The trial court convicted the appellant under Section 396 I. P. C. and sentenced him to death. 18. The learned Sessions Judge as also the High Court recorded concurrent findings of fact that the appellants shot and killed Mendai to secure the release to one of his companions and also to ensure their safe retreat. The trial court convicted the appellant under Section 396 I. P. C. and sentenced him to death. 18. It was urged before the High Court that the appellant may be guilty under Section 395 but not under Section 396 I. P. C. because any murder committed by the dacoits during their fight when they were running away without any booty could not be treated as murder committed in the commission of the dacoity. The High Court negatived the contention and held that Section 396, I.P.C. would be attracted even where an attempt had been made to commit a robbery and a murder was committed when the dacoits were trying to make a safe retreat. The conviction of the appellant under Section 396, I. P.C. was, therefore, confirmed along with the sentence of death passed upon him by the learned Sessions Judge. It was contended before the Hon'ble Supreme Court that the transaction of dacoity was completed the moment the dacoits took to their heels without any booty and the murder of Mendai committed by the appellant was another transaction which was dissociated from that transaction of dacoity. The murder of Mendai merely was committed by the appellant not in committing the dacoity, but independently of the transaction of dacoity when the dacoits were running away for safety and had proceeded considerable distance from the house of Mendai where the dacoity had been committed. The Supreme Court speaking through Bhagwati, J. held : "There is, therefore, considerable force in the contention urged on behalf of the appellant before us that, in the facts and circumstances of the present case, the transaction of dacoity had ended the moment the dacoity took to their heels and another and a separate transaction took place when the appellant shot at Mendai while crossing the ditch of the Pipra Farm and that, therefore, the appellant could not be convicted of having committed the offence under Section 396, Indian Penal Code." In that case there was satisfactory evidence that the appellant himself was responsible for the murder of Mendai. The Supreme Court altered the conviction of the appellant from Section 396 I. P. C. to one Section 302, I. P. C. and confirmed the sentence of death passed by the learned Sessions Judge. It is clear from the judgment of the Supreme Court that in that case the dacoits had succeeded in covering a considerable distance from the house of Mendai before the murder of Mendai was committed. 19. Coining to the facts of the present case the dead body of Dhan Singh was found inside the house itself were an abortive attempt at dacoity had been made by the miscreant. 20. Evidently, he was injured and killed when the dacoits were still inside the house and we are not inclined to take the view that at that time the dacoits had abandoned the idea of committing the dacoity. In the circumstances of the case, it is not possible for us to hold that the transaction of dacoity had come to an end and the murder of Dhan Singh was a separate transaction dissociated from the transaction of dacoity. 21. In our judgment, if the complicity of the appellants is held to be proved they have been rightly convicted junder Section 396, I. P. C. 22. The only question surviving for decision is as to whether the appellants had participated in the dacoity. Since the evidence against the appellants consists of identification alone, it has to be considered as to whether there was sufficient light to enable the features of the dacoits being observed by the witnesses and as to whether they had the opportunity of doing so. On the night when the dacoity took place there was a full moon and according to the prosecution witnesses Patram and Raghubir there were two lighted lanterns sheding light inside the courtyard, which enabled them to mark the features of the dacoits. Patram and his brother have stated that they used to get up at about 2 or 2.30 a.m. in the night for milking their cows. They also used to go round the village to collect milk from others, since they carried on the business of supplying milk to the dairies at Hapur, where they had to reach very early in the morning. They further deposed that since there were about 9 children in the family the lanterns used to be kept lighted during the night. They also used to go round the village to collect milk from others, since they carried on the business of supplying milk to the dairies at Hapur, where they had to reach very early in the morning. They further deposed that since there were about 9 children in the family the lanterns used to be kept lighted during the night. We see no reason to disbelieve their statement and we are of the opinion that there was sufficient light both on account of the full moon and also the lanterns to enable the inmates of the house who had come in close contact with the dacoits within a small area to identify them. Outside the house there was light available from full moon and from the electric bulbs fitted in the station building and the platforms. P.W. Lala stated that the bulb fitted to the station building was of about 200 watts In our opinion, the moonlight and the light shed by the strong electric bulbs at the railway station building was sufficient to enable P. W. 16 Kallu as well as Lala and Khacheru to identify the dacoits while they were escaping. 23. The test identification parades at which the appellants were put up for identification were held on 31st August, 1963 and the 13th November, 1963 and in these two parades P.W.s Patram, Raghubir and Khacheru made no mistakes and must, consequently, be considered as good and reliable witnesses. At the test identification parade Lala correctly identified one suspect, but made two mistakes. In view of his performance he cannot be considered a reliable witness. Kallu was a good witness available in the first parade. He correctly identified Nanwa without making any mistakes. At the parade at which Umrao was put up for identification he did make mistakes, but it is immaterial since that parade was held more than 2 months later. We shall now proceed to consider the individual cases of the appellants. 24. Nanwa is a resident of village Sait Kuan which is situate at a distance of one mile and seven furlongs from village Kaili. The prosecution has given unimpeachable evidence to establish that since the time of his arrest at 10.00 P.M. on 15th August, 1963 till this incarceration in Jail, he had been kept bapardah throughout and the witnesses had no opportunity of seeing him. The prosecution has given unimpeachable evidence to establish that since the time of his arrest at 10.00 P.M. on 15th August, 1963 till this incarceration in Jail, he had been kept bapardah throughout and the witnesses had no opportunity of seeing him. At the test identification parade held on the 31st Aug., 1963 he stated that the police had shown him to the witnesses at the police station. Before the learned Magistrate who conducted the inquiry he stated that the witnesses knew him from before since he resided only about 1 miles from the scene of occurrence. He also claimed that he had been shown to the witnesses at the tliana. In his statement made in the court of sessions he raised both the pleas and further stated that he had a quarrel with Kehar Singh Pradhan of his village, who had him falsely implicated. It was strongly urged by learned counsel for the appellants that since the distance between the villages was less than two miles there was a presumption that the appellant was known to the witnesses from before P. W. Ram Chandra Singh the Station Officer who investigated into the crime has deposed that Sait Kuan is a small village about 1 miles west of the Meerut Hapur Road with a population of about 600 and. the main concern of the residents is with Kharkhauda town on the main road, which is close to them. On the other hand, Kaili lies about 3 miles up on the Meerut-Haput Road and the residents of village Kaili depend on Hapur for their needs. No point of contact between the residents of village Kaili and that of Sail Kuan could be pointed out. The probability of the prosecution witnesses having seen Nanwa is so remote that we find no reason to doubt their statement that they had never seen the appellant before the incident. Moreover, the plea of being known to the witnesses from before was not raised by him when he was put up for the test identification parade conducted by the Magistrate. In the circumstances I of the case we cannot attach any weight to the claim made by him, that he was known to the witnesses from before. 25. Moreover, the plea of being known to the witnesses from before was not raised by him when he was put up for the test identification parade conducted by the Magistrate. In the circumstances I of the case we cannot attach any weight to the claim made by him, that he was known to the witnesses from before. 25. It was further urged by learned counsel for the appellants that there was a scar above the left eye-lid and the Magistrate who conducted the test identification parade had taken no steps to conceal it. The trial court has held that the scar is visible only when very carefully looked for and only if the eyes are closed. The learned Judge has held that when the eyes of the accused are opened the mark is fully concealed by the folds of the eye-lids. We are in agreement with the learned Judge that the failure to take precautions with regard to this particular mark does not render the identification by the witnesses unreliable. 26. Learned counsel for the appellants also con tended relying on Ashrafi v. State, A. I. R. 1961 All. p. 153 that since the number of distinctive marks of identification on the face of the appellant according to the note made by the Magistrate, in identification memo was more than ten, the paper chits pasted thereon must have made the face unrecognizable and under the circumstances it is hazardous to rely on the evidence of identification of the appellant. We have carefully examined the note of the learned Magistrate in the identification memo with regard to distinctive marks which according to him were likely to effect identification. In our opinion, paper-chits pasted on quite a few of them would not affect the general contours of the face. For instance the paper chits pasted on a mole behind the right ear would have no effect on the general features of the suspect. Moreover, some of the marks of identification are in such close proximity to each other that a single paper chit " x " would have covered together. In the circumstances of the case, we find no merit in the contention of the learned counsel for the appellant. The appellant was correctly identified at the identification parade held on 31st August, 1963, by P. W. 1 Patram, P. W. 18 Raghubir and P. W. 19 Lala. In the circumstances of the case, we find no merit in the contention of the learned counsel for the appellant. The appellant was correctly identified at the identification parade held on 31st August, 1963, by P. W. 1 Patram, P. W. 18 Raghubir and P. W. 19 Lala. Patram and Raghubir were both inmates of the house and had an opportunity of coming into close contact with the miscreants. We have already held that they are good and reliable witnesses and in our opinion their testimony is sufficient to justify his conviction. 27. Mangu was arrested by the Investigating Officer on 17th August, 1963 at about 4 a.m. from the house of one Asa Ram Goojar in village Kharkhari. He was brought to and admitted at the police station at 8 a.m. and sent to the Meerut Jail at 8.45 a.m. the same day. Evidence has been led by the prosecution to establish that during the period between his arrest and admission to the jail he was throughout kept bapardah and the witnesses got no chance of seeing him. At the test identification parade already held on 31st August, 1963 he pleaded that he had been shown to the witnesses at the police station. During the committal proceedings and in his statement in the court he made a similar statement. He further stated that he had a quarrel with Chhotan Pradhan and that consequently he had got him falsely implicated in collusion with the Station Officer, Police Station Kharkhauda. We see no reason to disbelieve the evidence of the Investigating Officer, the Head Moharrir Kartar Singh and P.W. 14 Shahabat Husain constable that the accused had been kept bapardah during the period that he was in custody of the police.The plea that he had been falsely implicated on account of enmity with the Pradhan remains unsubstantiated and we are not inclined to accept it. At the test identification parade held on 31st August, 1963 he was identified by P.W.'s Patram, Raghubir and Khacheru. He was also identified by these P.W.s in the court of sessions. P.W. Raghubir, however, failed to pick him out in the committing court and, consequently it is not safe to place reliance on his evidence of identification. We have already taken the view that Patram and Khacheru are reliable witnesses and in our opinion, the evidence on record is sufficient for his conviction. 28. P.W. Raghubir, however, failed to pick him out in the committing court and, consequently it is not safe to place reliance on his evidence of identification. We have already taken the view that Patram and Khacheru are reliable witnesses and in our opinion, the evidence on record is sufficient for his conviction. 28. It was urged by learned counsel for the appellant that he had small blinking eyes referred to as the Chundha in evidence. This feature was made a note of in the identification memo and Sri Tripathi, the learned Magistrate who conducted the identification proceedings, has stated that at the parade care was taken to mix him with persons with small eyes as far as possible. We are unable to accept the contention that the identification proceedings were vitiated, because of failure to take precautions with regard to this alleged special feature of the appellant. 29. The appellant Umrao was arrested from the railway colony Aligarh on the 9th of October, 1963 in the morning and was lodged in police station Civil Lines, Aligarh at 7.30 p.m. by the Investigating Officer Ram Chandra Singh. He was taken out of the police station at 11.30 a.m. and sent to the District Jail, Aligarh. On the 12th of October, 1963 constable Prahlad Singh brought him by bus to Meerut at 2.00 p.m. but since there was delay in getting a warrant prepared at the Collectorate, he took him to the police station, Civil Lines. Since there was no room for him he was taken to police station Lalkurli and lodged in the District Jail, Mccrut. Evidence has been led by the prosecution to the effect that during the entire period that he remained in police custody he was kept bapardah and was not shown to any of the witnesses. He was put up for identification on the 13th November, 1963 when he stated that he was known to the witnesses from before. In the committing court he further pleaded that he was shown to the witnesses at the thana and while explaining the circumstances appearing against him in evidence he clarified in the court of sessions that he had been shown to the witnesses at Aligarh as well as at police station Lalkurti at Meerut. In the committing court he further pleaded that he was shown to the witnesses at the thana and while explaining the circumstances appearing against him in evidence he clarified in the court of sessions that he had been shown to the witnesses at Aligarh as well as at police station Lalkurti at Meerut. In the court of sessions for the first time he further stated that he knew Patram well and had had a quarrel with him when they were returning from Hapur and that he had been implicated on account of that enmity. We see no reason to disbelieve the evidence led on behalf of the prosecution that the appellant has been kept bapardah and had not been shown to the witnesses. We are unable to accept the submission made on behalf of the appellant that his stay of Lalkurti had been inenoeuved only to get an opportunity for showing him to the witnesses. There is nothing on record to justify this contention. Patram and Raghubir denied that they knew the appellant and stated that they never took milk to the dairy of Tek Chand at Hapur which the appellant claimed to have been visiting. The story that he had a quarrel with Patram is not substantiated by any material on record. 30. The Investigating Officer denied the suggestion made during the cross-examination that even though he had come to know of the complicity of I this accused as early as 6th October, 1963 he had delayed his arrest upto the 9th of October, 1963, merely to arrange that the witnesses might have an opportunity of seeing him. He also denied that the appellant had been shown to the witnesses at police station Lalkurti. We see no reason to doubt I his testimony. On behalf of Umrao it was conteded that he had four furrows on his forehead and two on his cheeks and that not precautions had been taken with regard to these distinctive makes of identification. Sri Pant the Magistrate who conducted the identification proceedings stated that these furrows could not be considered prominent features of I distinctive marks of identification. In n our opinion, failure to take precautions with regard to these insignificant marks does not render the evidence of identification unreliable. Umrao was identified by Patram, Raghubir, Khacheru and Lala who also correctly picked him out in the court. In n our opinion, failure to take precautions with regard to these insignificant marks does not render the evidence of identification unreliable. Umrao was identified by Patram, Raghubir, Khacheru and Lala who also correctly picked him out in the court. We have already held that Lala is not a reliable witness. We are thus left with the evidence of identification of the appellant by three good witnesses. In our opinion, the participation of Umrao in the crime is established beyond all reasonable doubt. 31. Having considered the evidence on record and the circumstances of the case we are of the opinion that the appellants have been rightly convicted. 32. Criminal Appeals Nos. 1019 and 1123 of 1964 are dismissed. The conviction of the appellants is upheld and the sentences are maintained. The appellants are in jail and shall serve out their sentences.