ORDER R. Chandra, J. - Govind, Lautu, Dattey alias Sridutt, Jumman, Mahant and Prahlad Singh hive filed Criminal Appeal No. 244 of 1966 against their conviction u/s 395 IPC by the Civil and Sessions Judge, Gonda. Each of them has been awarded seven years' rigorous imprisonment. The other appeal, namely Criminal Appeal No. 275 of 1966 has been filed by Chhotey Kumar Singh and Hanoman against their conviction on the same charge. They have also been sentenced to seven years' rigorous imprisonment each. Lautu Was also tried on the charge u/s 412, IPC, but he was acquitted. Along witty the Appellants, one Baley was also tried on the charge of dacoity, but he was Acquitted. Since the two appeals arise out of the same trial, I propose to dispose them of by the same judgment. I have heard the Learned Counsel for the Appellants and the Assistant Government Advocate for the State. 2. The case for the prosecution in short was that on the night between 13/14-9-1964 (at about midnight) an armed dacoity was committed at the house of one Ramjas Baniya (PW 1) of village Baheri Map. (That village was about, nine miles; from police station Chhapia). It was said that the badmashes were ten or twelve in number and possessed gun, axe, spears, lathis and torches. That night Ramjas was sleeping in his old house which was chained from inside. Immediately towards north, there was another new house. Only a small lane intervened between the two houses. In the new house Bhagwati (younger son of Ramjas) and his wife Smt. Sonapati (PW 7) were sleeping. That house was also chained from inside. Just in front of the new house towards west, there was a cattle house of Ramjas. On the roof of that house, Ramdeo PW 2 (elder son of Ramjas) and his wife Smt. Shanti Devi PW 4 were sleeping. At about midnight, the badmashes broke open the shutters of the new house with an axe and entered there. They forcibly snatched the ornaments from the person of Smt. Sonapati. Thereafter they broke open the wooden shutters of the old house with an axe. They caught hold of Ramjas and tortured him to give a clue of the property. They actually attacked him with lathis. He, however, on the pretext of easing himself managed to slip away from there. They forcibly snatched the ornaments from the person of Smt. Sonapati. Thereafter they broke open the wooden shutters of the old house with an axe. They caught hold of Ramjas and tortured him to give a clue of the property. They actually attacked him with lathis. He, however, on the pretext of easing himself managed to slip away from there. While he was running away, one of the dacoits fired at him. He got shot injuries on his back and buttocks. Ramjas went to the village and raised an alarm. His son Ramdeo and daughter-in-law Smt. Shanti Devi also got down from the roof and rushed towards the village. Smt. Shanti Devi took shelter in the house of Noor Mohammad, the village Pradhan. Ramdeo shouted for help. When the dacoits were busy ransacking the house and looting the property, Jagai PW 3 (a neighbour of Ramjas) took out bundles of sugarcane leaves from his Ghari and set fire to them. In the meantime, several villagers also collected near the house of Ramjas. Some of them possessed torches. It was said that in each of the two houses a burning lantern was kept. The badmashes fired several rounds to scare away the persons who had collected outside the house. The dacoity lasted for about an hour. Thereafter they escaped with the booty. The villagers who had collected outside the house claimed to have seen and identified the badmashes in torch and fire light. The light which was available to the inmates inside the houses was only of two lanterns. The property looted consisted of cash, clothes, ornaments and utensils etc. of the value of about Rs. 300/- . The first information report Ext. Ka-1 was lodged by Ramjas the next day, namely, 14-9-1964, at 11 a.m. at police station Chhapia. (The distance of the police station from the scene of dacoity was about nine miles.) The Station Officer was not present when the report was lodged. He got information about the dacoity in village Maskinwa where he had gone in connection with the investigation of some other case. He went to Maskinwa Dispensary where he interrogated Ramjas and his son Bhagwati. Since the medical officer was not present in the hospital. Ramjas, was sent to district hospital Gonda. He got information about the dacoity in village Maskinwa where he had gone in connection with the investigation of some other case. He went to Maskinwa Dispensary where he interrogated Ramjas and his son Bhagwati. Since the medical officer was not present in the hospital. Ramjas, was sent to district hospital Gonda. Thereafter, the investigating officer visited the scene of dacoity at 9 p.m. He interrogated Ramdeo, his wife Smt. Shanti Devi and Bhagwati's wife Smt. Sonapati. Ramdeo also furnished him a supplementary list of the looted property. The next day, namely, on 15-9-1964 he interrogated the other witnesses including Jagai P.W. 3 and prepared the site plan Ext. Ka-22. He also collected a sample of ash and pieces of broken shutter. A search was started for the culprits. After a few days, the police got the information that Chhotey Kumar Singh, Prahlad Govind, Mahantey, Jumman and others were involved in the dacoity. So, on the night of 20-9-1964, the police party consisting of Circle Inspector S.P. Saxena P.W. 23, Station Officer Chhapia Naseeruddin P.W. 28, Station Officers of Mankapur and Sadullanagar and some Second Officers collected at the school in village Ghari Ghat, for organising a raid in connection with the arrest of the accused. On the morning of 21-9-1964, the Circle Inspector and the Station Officer of police station Chhapia with some other police officers arrested Chhotey Kumar Singh in village Keshonagar Grant from his farm. (That place was situated within police circle Sadullanagar.) Chhotey Kumar Singh is the son of a Taluqedar. It is said that he was also required in some other case u/s 394 IPC. Prahlad Singh, Hanoman Dutt and Govind were also arrested along with Chhotey Kumar Singh from the same farm. They were immediately put in Parda. It was alleged that on the information of Chhotey Kumar Singh, one gun was dug out from his another farm at Kotwa (about one mile from the farm of Keshonagar Grant). That gun related to the other case which was pending u/s 394, IPC. The same day, Mahantey and Jumman were arrested from village Pokharayya, hamlet of Keshonagar Grant. They were also put in Parda. All the arrested persons were removed to police station Sadullanagar and were kept in the lock-up. Lautu and Dattey who were arrested on 22--9--1964 were also put in Parda and removed to police station Sadullanagar. The same day, Mahantey and Jumman were arrested from village Pokharayya, hamlet of Keshonagar Grant. They were also put in Parda. All the arrested persons were removed to police station Sadullanagar and were kept in the lock-up. Lautu and Dattey who were arrested on 22--9--1964 were also put in Parda and removed to police station Sadullanagar. It was said that from the possession of Lautu some looted property was also recovered. All the arrested persons were sent to Gonda jail in Parda. They were put up for identification on 8--10--1964. 3. Ramjas injured was medically examined on 15--9--1964. He had received as many as 29 injuries consisting of gunshot, lacerated and incised wounds besides abrasions. As a result of screening, some radio opaque bodies like pellets were found present in the right hand and right thigh and upper side of middle of thigh. 4. After completing the investigation, the charge sheet was submitted on 19-10-1964. 5. The accused pleaded not guilty and denied the charge. They attributed their false prosecution to enmity. Some of them also contended that they were known and also shown to the witnesses. 6. In support of the prosecution case in all 28 witnesses were examined. The accused did not produce defence. On the basis of the identification evidence, the trial Judge found that the charge of dacoity had been fully brought home to the Appellants and he convicted them as stated above. 7. There is no serious dispute about the factum of the dacoity. The primary question for consideration in the present appeal is, whether the Appellants or any of them took part in-the dacoity. 8. On behalf of the Appellants, only the following submissions have been made: (1) That Chhotey Kumar Singh had been falsely implicated due to election enmity between his father Raguran Tej Bahadur Singh and Awadh Pratap Narain Singh. The latter was duly elected in the General Elections of 1962. Awadh Pratap Narain Singh, M.L.A. and one Juggal were co-accused in a case u/s 376, IPC, filed by Smt. Kanti. (The suggestion is that Smt. Kanti was the rayyat of the Appellant). Even according to the prosecution, Juggal had actually furnished the information to the police about the complicity of Chhotey Kumar Singh in the dacoity. Awadh Pratap Narain Singh, M.L.A. and one Juggal were co-accused in a case u/s 376, IPC, filed by Smt. Kanti. (The suggestion is that Smt. Kanti was the rayyat of the Appellant). Even according to the prosecution, Juggal had actually furnished the information to the police about the complicity of Chhotey Kumar Singh in the dacoity. (2) That the identification evidence in the case was quite worthless and unreliable on the grounds: (a) that on 6-10-1964 which was the first date fixed or identification, the Magistrate noted down the special marks of identification on the persons of the accused and with the help of Public Prosecutor and Assistant Public Prosecutor, Gonda and Assistant Public Prosecutor, Basti, pasted chits on those special marks of the accused and thereafter the identification was adjourned to 8-10-1964. It was urged that the Public Prosecutor's who were present throughout the proceedings conducted on 6-10-1964 and feeing part of the prosecuting agency, were highly interested in the result of the case. They had every possible opportunity of communicating those special marks of identification found on the persons of the accused, to the witnesses who were actually produced for identification on 8-10-1964. This irregularity committed by the Magistrate in conducting the identification proceedings had considerably reduced the value of the identification, and (b) that the persons mixed in the parade of Chhotey Kumar Singh were not of similar height, colour and other special features (which Chhotey Kumar Singh possesed). On that ground also, his identification was practically useless. (3) That there was ho sufficient light to enable the proper identification. The dacoity was committed in the dark part of the night. Even from the prosecution evidence, it was clear that there was no sufficient light that night. (4) That the witnesses examined by the prosecution were mostly of village Shuklanpurwa which was about three furlongs from the village of dacoity. They were also related to the village Chaukidar. Although there were 30 or 40 houses in the village of dacoity nobody from there could come forward to support the prosecution case. (5) That according to the defence, the Appellants after their arrest were taken to Ghari Ghat School and shown to the witnesses. They were also related to the village Chaukidar. Although there were 30 or 40 houses in the village of dacoity nobody from there could come forward to support the prosecution case. (5) That according to the defence, the Appellants after their arrest were taken to Ghari Ghat School and shown to the witnesses. The Circle Inspector and the Investigating Officer who took an active part in effecting the arrest denied the correctness of that fact, but Constable Jai Chand PW 18 admitted that after the arrest, they had collected at Ghari Ghat School. It was further noteworthy that instead of taking the arrested persons to police station Chhapia to which circle the crime related they were actually taken on foot to Sadullanagar and Mankapur for boarding the train for Gonda. The distance of police Station Chhapia was only nine miles while they travelled a distance of nearly 22 miles on foot for boarding the train for Gonda. This circumstance could not be satisfactorily explained by the prosecution. (6) That the performance at the identification was too good to be true. It gave an indication that extraneous aid had been provided to the witnesses for identifying the accused. 9. I first propose to deal with the submission relating to the identification, since the conviction of the Appellants is based mainly on that evidence. It is admitted that the first date fixed for identification was 6-10-1964. On that date, Sri B.L. Srivastava, Magistrate PW 6 visited the district Jail Gonda. He noted down the descriptions of the accused with special marks of identification found on their persons in the memo. It is not disputed that the Public Prosecutor and the Assistant Public Prosecutor, Gonda and the Assistant Public Prosecutor, Basti were present throughout those proceedings which lasted for about two hours. The Magistrate employed the services of the Assistant Public Prosecutor, Gonda for pasting chits on the special marks of identification. During those proceedings, objections were taken on behalf of Chhotey Kumar Singh Appellant that the under trials who were been nixed in that parade did not correspond to the special features which he possessed, such as extremely fair colour well built body and of good height with broad forehead bearing curly hair. In that connection two applications were moved on his behalf. In that connection two applications were moved on his behalf. On one of those applications, the Magistrate passed the following order: The application was moved after the marks were noted and chits were placed on his face....Now I find that there are no sufficient number of persons to be mixed and hence orders on the previous application were passed at 2.30 P.M. (Vide Ext. Kha-3.) The identification was adjourned to 8-10-1964 ostensibly on the ground that the persons to be mixed with Chhotey Kumar Singh with the similar description. We are not available. In that connection, he also passed the following order: For the satisfaction of the accused and his counsel, he is allowed an opportunity to produce ten persons of similar appearance and age group on 8-10-1964 positively for the identification. APP Gonda arid Basti will please note. They will please attend Jail at 11 A.M. (Vide Exts. Kha-1 and Kha-2.) It is not quite clear why the identification of all the accused was postponed. There was no such move on their behalf. On 8-10-1964 an application was moved on behalf of Chhotey Kumar Singh informing the court that since examinations were going on in colleges, it was not possible to get persons resembling the features of the Petitioner. In the last paragraph it was also stressed: ...PP Gonda, APP Gonda and APP Basti were present in the jail throughout on 6-10-64. They all saw the accused Chhotey Kumar Singh and special marks on his face were pointed out to you by APP Gonda. Prosecution being interested they must have informed about the features, colour, curly hairs, heights etc. to the witnesses who have come for identification of the accused, so it is no use in holding the identification proceeding now. On that application, the Magistrate passed the following order: The identification shall be held today. The opportunity to mix persons to the satisfaction of the accused was given but it is not availed. I do not think that the proceedings are biased due to reasons given above as APPs and PP are responsible Government servants, whose honesty I am unable to doubt merely on suspicion. (Vide Ext. Kha 4) Another application was moved the same day and the Magistrate passed the following order: The Learned Counsel could not show me any law about noting down the parentage etc. of the persons to be mixed. (Vide Ext. Kha 4) Another application was moved the same day and the Magistrate passed the following order: The Learned Counsel could not show me any law about noting down the parentage etc. of the persons to be mixed. The persons mixed are of similar age and health. There is no doubt that they are not exactly identical in complexion. To avoid it an opportunity was given to the accused to bring the persons of his own satisfaction but it was not availed. To make up similar height of all the persons in his parade, the bricks have been placed under their feet. (Vide Ext. Kha-5.) On these admitted facts, it could not be doubted that the PP and APPs who were present throughout the proceedings held on 6-10-1964 had ample opportunity to convey information about the special marks of identification found on the persons of the accused to the witnesses who were actually produced at the identification of 8-10-1964. In a similar case, Criminal Appeal Nos. 570 of 1960--Amber Singh v. The State Nigam and Misra, JJ. made the following observations: ... On his own admission, Sri Johri worked for three hours on 2-4-1960. On that date, as he has stated, he filled up only columns 1, 2, 3 and 5 of Ext. Ka-51. He noted the special features of the five suspects on that date and closed the work for that day. The actual identification of the accused by the witnesses, including the pasting of chits on the prominent marks of the accused which had been noted and entered by him in Ext. Ka 51 on 2-4-1960, was done on 3-4-1960. Sri Johri has further admitted that on these dates the Assistant Public Prosecutor was present along with him in the jail. On behalf of the Appellants, it has been vehemently contended that in view of the above evidence of Sri Johri there was every likelihood that the prominent marks of the accused which had been noted by Sri Johri on 2-4-1960, in the presence of the Assistant Public Prosecutor were communicated by the latter to the witnesses before the witnesses came to identify the accused on 3-4-1960. There is no evidence on the record that the Assistant Public Prosecutor acted in the manner suggested on behalf of the Appellants. There is no evidence on the record that the Assistant Public Prosecutor acted in the manner suggested on behalf of the Appellants. But all the same the reasonable possibility of such a course having been adopted by the Assistant Public Prosecutor to help the witnesses to identify the accused cannot be ruled out. The Assistant Public Prosecutor after all is an official of the police department directly interested in the result of the case. He was admittedly present on 2-4-1960, when all the prominent marks of the Appellants were noted by Sri Johri.... There was thus ample opportunity for the Assistant Public Prosecutor to have noted all kinds of prominent marks of the accused during the three hours that he was with Sri Johri in the jail on 2-4-1960 and to have communicated the same, if he was so minded, to the witnesses before they came for actual identification on 3-4-1960. It is not necessary that such misconduct on the part of the prosecuting agency should be proved beyond doubt. The existence of a reasonable possibility of such a course having been adopted is enough to shake the confidence of the Court in the results of identification proceedings conducted in that manner. Sri Johri was asked in cross-examination as to why he conducted the identification proceedings in this case on two dates. The reply given by him is simply devoid of common sense and understanding. His reply was that he did so because there is no direction or principle that identification proceedings should be finished the same day. It is elementary knowledge I that a Magistrate conducting the identification proceedings of the accused should take all reasonable precautions to ensure that before the identification proceedings are held no opportunity is given to the prosecuting agency or to the witnesses to know about the prominent marks of the accused which might enable the witnesses to pick them out in the parade on the basis of such advance knowledge. If Sri Johri did not possess this elementary knowledge we are constrained to observe that he is wholly unfit to perform the responsible functions of a Magistrate. If Sri Johri did not possess this elementary knowledge we are constrained to observe that he is wholly unfit to perform the responsible functions of a Magistrate. Sri Johri should have very well understood that he was noting the prominent features of the accused in the presence of the Assistant Public Prosecutor on 2-4-1960, for three hours and that the Assistant Public Prosecutor being an interested party in the prosecution and responsible for the result of the case might convey knowledge of the prominent marks to the witnesses before the witnesses came to identify on 3-4-1960.... We strongly disapprove of the manner in which Sri Johri conducted the identification proceedings in this case....on account of the unsatisfactory and irregular manner in which Sri Johri conducted the identification of these Appellants it is not possible to place implicit reliance on the results of identification. We are constrained to remark that these accused have to be acquitted of the serious charge u/s 396, IPC on account of the irresponsible manner in which Sri Johri behaved in conducting the identification proceedings.... (Vide Ext. Kha 11) The remark made by the learned Judges apply with equal force to the facts of the present case. The serious irregularity committed by the Magistrate in conducting the proceedings has considerably reduced the value of the identification. 10. The identification evidence against Chhotey Kumar Singh Appellants was also quite worthless and" unreliable on the ground that the persons mixed in his parade did not correspond to the special features possessed by him. Ram Narain, P.W. 5 admitted that Chhotey Kumar Singh had curly hair, fair colour and good height, but the persons who were mixed in his parade did not possess all those special features. Even the Magistrate in his evidence admitted that the persons mixed in his parade were not of the same colour and stature. For that he had wrongly thrown the burden on the accused to have produced persons of his choice. Even if he had failed, it was the duty of the Magistrate to have made earnest efforts to procure persons possessing similar features and conducted the proceedings properly. In the discharge of that duty, he has miserably failed. 11. For that he had wrongly thrown the burden on the accused to have produced persons of his choice. Even if he had failed, it was the duty of the Magistrate to have made earnest efforts to procure persons possessing similar features and conducted the proceedings properly. In the discharge of that duty, he has miserably failed. 11. According to the Magistrate, for making up the deficiency in the height, he made the persons mixed to stand on a cornice of the wall which was only 3 to 4 inches wide and Chhotey Kumar Singh was made to stand on the ground level. A person could not comfortably stand on a cornice which was only 3 or 4 inches wide, because it was hardly sufficient to accommodate only a portion of the heel of the foot. Naturally, to balance the body he shall have to stand sticking against the wall. So, it was clear that the persons who were mixed and made to stand on the cornice must be standing sticking to the wall. Chhotey Kumar Singh who was asked to stand against the cornice would naturally be at some distance from the wall. SO, that would also have facilitated the witnesses in picking out Chhotey Kumar Singh. So, far all the various reasons, the identification evidence against Chhotey Kumar Singh could not be regarded as good and reliable. 12. It was admittedly a dark night. The moon that day had set at 11 P.M. Jagai PW 3 claims to have set fire to the sugarcane leaves (at point No. 10 shown in the site plan), which he took out from his Ghari (shown with figure 11 in the site plan Ex. Ka 22). He did not fully support the prosecution case and was declared hostile. He in his evidence stated that due to the rainy season light produced was not bright. He also admitted in his evidence that under the pressure of Amrit Nath M.L.A. he was not giving true facts in court. So, on his own showing, he was not a very reliable person. Ram Nath PW 22 was specifically asked whether it was a fact that the dacoity was committed in the dark and there was no light and the dacoits could hot be identified. To that he replied in the affirmative. He was neither declared hostile nor re-examined by the State. Ram Nath PW 22 was specifically asked whether it was a fact that the dacoity was committed in the dark and there was no light and the dacoits could hot be identified. To that he replied in the affirmative. He was neither declared hostile nor re-examined by the State. So, that part of his statement went completely uncontroverted. On this evidence, it was difficult to hold that there was sufficient light available to the witnesses to identify the badmashes that night. 13. Even according to the prosecution, the badmashes possessed guns, spears, axes, lathis etc. Guns were being fired continuously. Even Ramjas had received multiple gunshot injuries. The story that the witnesses had collected that night in the open where there was no shelter or protection at the place marked No. 12 in the site plan, which was just close to the passage through which the dacoits are said to have come and escaped, also sounds to highly unnatural and improbable. 14. The performance at the identification was too good to be true. Thirteen witnesses were produced for identification. Chhotey Kumar Singh was correctly identified by as many as seven persons, namely, Ramjas, Ramdeo, Noor Mohammad, Azimulla, Ram Narain, Ayodhya Prasad and Mahesh Dutt. Similarly, Hanoman was correctly identified by 7 persons, namely, Ramdeo, Jagai, Ram Narain, Mahesh Dutt, Noor Mohammad, Azimullah and Aqil. Mahantey was correctly identified by 8 persons, namely, Ramdeo, Jagai, Ram Narain, Ayodhya Prasad, Mahesh Dutt, Aqil, Azimulla and Noor Mohammad. Prahlad was correctly identified by 8 persons, namely, Ramdeo, Jagai, Ram Narain, Ayodhya Prasad, Mahesh Dutt, Azimulla, Ziledar and Aqil. Jumman was correctly identified by 9 persons, namely, Ramdeo, Jagai, Ram Narain, Ayodhya Prasad, Mahesh Dutt, Noor Mohammad, Azimulla, Ziledar and Aqil. Lautu was correctly identified by 8 persons, namely, Ramdeo, Ram Narain, Suraj Narain, Ayodhya Prasad, Mahesh Dutt, Kanik Dutt, Aqil and Molhu. Dattey was correctly identified by 11 persons, namely, Ramdeo, Ramjas, Jagai, Ram Narain, Suraj Narain, Mahesh Dutt, Azimullah, Ziledar, Aqil, Kanik Dutt and Molu. Govind was correctly identified by six persons, namely, Jagai, Ram Narain, Noor Mohammad, Azimullah, Ziledar and Aqil. It is significant that out of the thirteen witnesses produced at the parade, only Mahesh Dutt committed one mistake in the parade of Govind. This excellent performance at the identification gives a clear indication that some extraneous aid was given to the witnesses. Govind was correctly identified by six persons, namely, Jagai, Ram Narain, Noor Mohammad, Azimullah, Ziledar and Aqil. It is significant that out of the thirteen witnesses produced at the parade, only Mahesh Dutt committed one mistake in the parade of Govind. This excellent performance at the identification gives a clear indication that some extraneous aid was given to the witnesses. The possibility could not be ruled out that either the witnesses knew the Appellants from before or had seen them after the dacoity. Since I have found that the identification evidence in the case was quite worthless and unreliable, it is needless to examine the other submissions made on behalf of the Appellants. On this evidence, it is not possible to sustain the conviction of the Appellants. So, the appeals must be allowed. 15. Accordingly, Criminal Appeal Nos. 244 and 275 of 1966 are allowed and the conviction and sentences of Govind, Lautu, Dattey alias Sridutt, Jumman, Mahant, Prahlad Singh, Chhotey Kumar Singh and Hanoman, on the charge u/s 395, IPC, are set aside and they are acquitted. It is reported that Chhotey Kumar Singh is on bail. He need not surrender and his bail bonds shall stand discharged. The other Appellants who are reported to be in jail shall be set at liberty forthwith unless their detention be necessary in connection with some other crime.