JUDGMENT P.N. Bakshi, J. - Khase and Sardar Singh have been convicted by the First Temporary Civil and Sessions Judge, Aligarth on January 3, 1969 for having committed dacoity at the adjoining houses of Khem Karan and Ishwar, situate in village Ahalda, three miles from Police Station Iglas. They have been sentenced to seven years' rigorous imprisonment. Sardar Singh has also been found guilty for an offence under Section 25 of the Arms Act and sentenced to 18 months' rigorous imprisonment. The sentences imposed on Sardar Singh under Section 395 I.P.C. and 25 of the Arms Act, have been ordered to run consecutively. 2. The house of Khem Karan and Ishwari are adjacent to each other. Khem Karan's house is to the north and Ishwari's house is to the south. The entrance doors of both the houses open towards the east in a Gali. Across the Dogra is the house of Srimati Mahraj Kunwar. To the north-east of the house of Khemkaran and at a short distance, is situate a well. The case for the prosecution is that in the midnight between 20th/ 21st May, 1968 about 17 or 18 bandits armed with guns, ballams and lathis committed dacoity at the house of Khem karan and Ishwari. At the time of the dacoity the men-folk was sleeping on the their Khaliyan at some distance to the north east of the house of Khem Karan. When the dacoits entered the house of Khern Karan the women-folk and the children began to raise an alarm. Thereupon Khem Karan, Bhagwan Singh, Lokman, Niranjan, Raghubir and others, who were sleeping at their Khaliyan, woke up and rushed to the place of the occurrence armed with lathis and ballams. Lokman, Niranjan, Beni and Biri Singh are alleged to have carried torches with them. The dacoity was committed for about half an hour. It is the case of the prosecution that the village people stood under cover of the northern wall of the house of Khem Karan. They also threw brickbats in order to scare away the dacoits. In the meantime Raghubir set fire to the heap of wheat stalks stacked a few paces away from the well. This created light which was sufficient for the identification of the accused. It is admitted that the night was dark. They also threw brickbats in order to scare away the dacoits. In the meantime Raghubir set fire to the heap of wheat stalks stacked a few paces away from the well. This created light which was sufficient for the identification of the accused. It is admitted that the night was dark. The dacoits decamped with the booty through the Gali and after going a short distance they divided themselves into two groups one party escaped towards village Sumardhi towards the northwest and the other party of 5 or 6 dacoits amongst whom were two armed gunmen tried to escape towards Nagla Jagta. The village people gave a hot chase to the party that was escaping towards Nagal Jagta. After crossing the Iglas-Mursan road and Karban Nadi, there was an encounter between the village people and some of the dacoits in the vacant field of Ishwari. Onkar Singh struck a lathi blow on the head of one of the dacoits. He fell down injured. In the encounter one of the bandits also fired gun which caused injuries to Onkar Singh. The village people are also. alleged to have struck ballam blows to the dacoits. They however, decamped leaving the injured daooits behind. This injured dacoit was Sardar Singh, resident of village Tikari, Police Station Barla, who was arrested along with his gun (D.B.B. No. 80871). A First Information Report of the occurrence was scribed by Khem Karan at his house in which he mentioned the names of the other accused, who are alleged to have been the associates of Sardar Singh, this information having been conveyed to him by Sardar Singh himself. Shortly after, the injured persons and the arrested accused were escorted to the Police Station along with the gun. The report was lodged by Khem Karan at Police Station Iglas at 4 P.M. Har Charan Singh P.W. 12 Station Officer was not present at that time and as such report was handed over to constable Chandra Sahai P.W. 11. Its chick was prepared. The gun Ex. 2 was deposited and a case duly registered. On his return at about 7 A.M. the Sub-Inspector interrogated Sardar Singh. Thereafter he commenced investigation and reached the place of occurrence at 8 A.M. He prepared a site-plan recorded the statements of Khem Karan, Niranjan, Raghubir Lokman, Bhagwan and others and recovered two empty cartridges, one pair of shoes, one pair of sandils? On his return at about 7 A.M. the Sub-Inspector interrogated Sardar Singh. Thereafter he commenced investigation and reached the place of occurrence at 8 A.M. He prepared a site-plan recorded the statements of Khem Karan, Niranjan, Raghubir Lokman, Bhagwan and others and recovered two empty cartridges, one pair of shoes, one pair of sandils? a cap and a chadar. Recovery memos of these articles were duly prepared. Bloodstained and unstained earth were also taken in possession from the said field and sealed in separate bottles and their memos were also prepared. Thereafter the Investigating Officer took sample of the burnt ash from near the well and prepared its memo Ex. Ka.-5.Ballam Ex. 7 and a blade of ballam Ex 8 were also given to him by the village people whose memo Ex. Ka. 6 was prepared. Two empty thin boxes of the two victim of the dacoity were taken possession of and Supardginama Ex. Ka. 7 was got prepared by Sub-Inspector Yadav. The four torches, in the hight of which the accused are said to have been recognised, were inspected by the Investigating Officer and were found to be in Working order. Their Supardignama was also got prepared. The accused were searched for but they were not traceable. 3. Sardar Singh was kept Baparda at the police Station till about I I A.M. on 21.5.1968. He was thereafter escorted by constable Tajammul Husain and Constable Habib Mohammad from the police Station Baparda to the District jail vide entry of departure Ex. Ka-17 made by clerk constable Chandra Sahai P.W. 11. At about 9 A.M. on 22.5.1968 Sub-Inspector Gauga Prasad Sharma P,W. 14 arrested accused Khase from the bazar of village Gurai, Police Station Iglas. He was brought baparda to Gurai Police Station Iglas. He was brought baparda to Police. Station at 10 A.M. on the same day at about 1 P.M. the accused was escorted baparda to the District jail by constable Harbal Singh P.W. 8. The accused was put up for identification on June 3, 1968. He was correctly identified by Khem Karan P.W. 1, Bhagwan Singh P.W. 2, Lokman P.W. 3 and Niranjan P.W. 5. They committed no mistake. The identification proceedings were conducted by Sri B. S. Jayant. Magistrate first class P.W. 13. After completion of the investigation charge. sheet was submitted. Onkar Singh, Har Chand Srimati Kallo were examined by Dr. He was correctly identified by Khem Karan P.W. 1, Bhagwan Singh P.W. 2, Lokman P.W. 3 and Niranjan P.W. 5. They committed no mistake. The identification proceedings were conducted by Sri B. S. Jayant. Magistrate first class P.W. 13. After completion of the investigation charge. sheet was submitted. Onkar Singh, Har Chand Srimati Kallo were examined by Dr. K. B. Ahare, Medical Officer, District Hospital, Aligarh. The following injuries were found on Onkar Singh. 1. Lacerated wound 4" x 3" muscle deep on the back of left shoulder and upper part of left arm with partially inverted and partially everted edge. No charring of hairs present. Margins are blackened at place. No foreign body could be seen in the wound or palapate near about it. One round of foreign body was palpable 12" away from the edge (to be confirmed with X-ray). 2. Abraded area 2" x 1" on the lateral part of back upper part three parallel abarasion measuring ' x " to 1" x ". 4. Har Chand's medical examination disclosed seven injuries which were all abrasions. Injury no. 1 was a circular abrasion. Injury no. 2 was described as a multiple abrasion and oblique in shape. Srimati Kallo had two abrasions. 5. The injuries of Sardar Singh were also examined by Dr. Khare at 6-25 P.M. vide injury report Ex. Ka-14. He was found to have five injuries including two abrasions, one abraded contusion and one traumatic swelling 1 x " x scalp deep on ncc top of the head. 6. The accused pleaded not guilty and they alleged their false implication due to enmity. Khase appellant also pleaded that he was known to the witnesses and also shown to them at the Police Station. 7. Fourteen witnesses have been examined by the prosecution in support of their case, Khem Karan P.W. 1 Bhagwan Singh P.W. 2, Lokman P.W. 3, Niranjan Singh P.W. 5, Onkar Singh P.W. 6 and Raghubir P.W. 7 are the eye-witnesses Prem Narain Sharma P.W. 4 is the Compounder of the District Hospital Aligarh. Harbal Singh P.W. 8 is the Constable who had escorted Khase accused from the Police Station to the District Jail. Fayyaz Mohammad P.W. 9 had escorted the injured from the Police Station to the District Hospital P.W. 10. Dr. K.B. Khare examined the three injured and the accused. Constable Chandra Sahai P.W. 10 prepared the chick report. Harbal Singh P.W. 8 is the Constable who had escorted Khase accused from the Police Station to the District Jail. Fayyaz Mohammad P.W. 9 had escorted the injured from the Police Station to the District Hospital P.W. 10. Dr. K.B. Khare examined the three injured and the accused. Constable Chandra Sahai P.W. 10 prepared the chick report. Har Charan Singh P.W. 12 Station Officer and Ganga Prasad P W. 14 conducted the investigation. Sri B.S. Jayant Magistrate, First Class, Aligarh P.W. 13 conducted the identification proceedings. 8. It cannot be doubted that a dacoity was committed at the house of Khem Karan and Ishwari on the night between 20th/21st May, 1968. There is sufficient evidence on the record to prove this fact. The factum of dacoity has also not been seriously challenged. It has also been conclusively established from the evidence on the record that Sardar Singh appellant was one of the bandits who was injured in the encounter in question between the village and the bandits and that he was arrested along with D B. B.L. No. 80871. The factum of arrest of Sardar Singh of the spot has also not been challenged before me. From the evidence of the eye-witnesses mentioned above, it is proved conclusively that an encounter did take place in the field of Ishwari between the village people and the fleeing dacoits. From the medical it is clear that Sardar Singh received a lacerated wound on the top of his head, apart from the other simple injuries. This injury on the head was caused by the lathi blow of Onkar Singh P.W. 6. As a result of this injury he fell down and was apprehended by the witnesses. I have been taken through the evidence of the eye-witnesses named above. All of them corroborate the story of the encounter between the bandits and the village people. Nothing has been pointed out to me in the statement of the witnesses which may throw doubt on the arrest of the accused Sardar Singh in the field of Ishwari, as is the case of the prosecution. All of them corroborate the story of the encounter between the bandits and the village people. Nothing has been pointed out to me in the statement of the witnesses which may throw doubt on the arrest of the accused Sardar Singh in the field of Ishwari, as is the case of the prosecution. The suggestion made on behalf of accused Sardar Singh that he was arrested by the Station Officer Iglas and the further suggestion that he was arrested by constable Latoori Singh near the bus-stand of Iglas has no merit and I am not prepared to discard the convicting testimony of the eye-witnesses, merely on the basis of such inconsistent suggestion made to some of the prosecution witnesses. To my mind, the defence case is wholly untrue and unworthy of any credit. I am, therefore, of the opinion that the prosecution case as against Sardar Siugh has been conclusively established from the evidence on the record. 9. So far as appellant Khase is concerned there are certain factors which create a doubt in my mind as to the complicity of this accused in the occurrence in question. From a perusal of the site-plan I find that the prosecution witnesses who claim to have recognised Khase were all standing together close to the northern wall of the house of Khem Karan. According to the case of the prosecution there were two sources of light in which the witnesses are said to have recognised the appellants. The night was admittedly dark. Accordingly to the statement of the witnesses, Lokman and Niranjan Singh had torches, which they flashed when they came running to the place of the occurrence from their Khalyans. They all took cover on and near the northern wall of the house of Khem Karan. They stood there for about 10 or 15 minutes shouting and raising an alarm. Thereafter, according to the statement of Bhagwan Singh the miscreants came out the house. The dacoits came into the Gali which runs north-south towards the east of the house of Khem Karan and Ishwari. The witnesses are said to have been jumping at their place in order to recognise the dacoits. Lokman tates : "Hum loag konay se uchak ker un dakoonki taraf dekh rahaythay. " 10. The dacoits came into the Gali which runs north-south towards the east of the house of Khem Karan and Ishwari. The witnesses are said to have been jumping at their place in order to recognise the dacoits. Lokman tates : "Hum loag konay se uchak ker un dakoonki taraf dekh rahaythay. " 10. This clearly shows that on the one hand, the witnesses were trying to conceal their presence and on the other they were trying to jump in their places in order to get a glimpse of the dacoits. In these circumstances, it is not possible to accept that they were flashing their torches from the place of hiding and that the light of the torches was such that it must have fallen on the faces of the dacoits so as to make their recognition possible. Khem Karan P.W. 1 has stated that the fire was lit in order to make the recognition of the dacoits possible. He states : "Aag is liyay lagayee thiki uskaybaad dakoo ghar say nikal jayen our kuchh dakoon ko pehchanlen." 11. This statement also indicate that the light of the torches was not sufficient for recognition and therefore it was thought necessary to kindle a fire In view of this evidence I am not prepared to hold that the light of the torches, if any, was sufficient to enable recognition of the accused. 12. The next source of light is the fire. This fire is said to have been lit, according to the site-plan at point no. 10. In the evidence of the witnesses there is a divergence as to the actual police where the said fire was lighted. Be that as it may, the crucial question which arises for determination is as to when in point of time, was this light lighted and whether it was sufficient to enable the recognition of the accused appellants. According to the statement of Khem Karan P.W. 1 the fire was lighted when the dacoits came out of the houses after committing dacoity. He states:- "Jaisay hi dakoo makan say niklay waisay hi humnay polon mein aag day dee ........................Jub dakoo gharon say nikal ker chalney lagay tub poolon mein aag lagayee thee. According to the statement of Khem Karan P.W. 1 the fire was lighted when the dacoits came out of the houses after committing dacoity. He states:- "Jaisay hi dakoo makan say niklay waisay hi humnay polon mein aag day dee ........................Jub dakoo gharon say nikal ker chalney lagay tub poolon mein aag lagayee thee. Jub aag lagayee tub dakoo poolan say aagay nikal gayay thay our kuch peechhay reh gayay they, In pechhay walon mein say hum nay kuchh ko pehohan liya......Dakoo ghur say nikul ker bhagay huwaychalay gayay." 13. From the statement quoted above it is clear that the act of looting had already been completed and the dacoits had come in the lane and some of the dacoits had even run away when the fire was lit. This witness claims to have recognised those dacoits who has been left behind while they were in the process of running away. From a perusal of the site-plan it appears that the witnesses, if at all, could only get a side view of the fleeing dacoits, even if it is accepted that the fire was burning. The point would still remain whether the said glance was sufficient to enable a clear recognition. When I turn to the statement of Lokman P.W. 3. I find that the appellant Khase was running along with the other dacoits and he was placed almost in the centre of the fleeing party. Lokman says : "Mainnay is mulzim Khasay ko us samai dekha jab who bhaga ja raha tha. Poolon kaykiaag roshni mein dekha. Yeh mulzim our daakooon key goal say bhaga jarahe the. Mulzim dakoon kay beech mein tha." 14. According to the case of the prosecution 8 or 10 dacoitis were running away and Khase was in the middle of these dacoits. In that position I am not prepared to accept that the alleged eyewitnesses, who got only a side view of the dacoits could possibly have recognised the features of Khase appellant. In my opinion, therefore even if we accept that a fire was lit and some light emerged therefrom, the evidence on the record creates a doubt whether the witnesses placed, as they were, could recognise Khase appellant, This accused has pleaded that he was known to the witnesses from before and he was also shown to the witnesses at the Police Station. Bhagwan Singh P.W. 2 admitted that he had known Srimati Dropa, who is the mother of accused Khase, before the occurrence in question. In his statement Khase has stated:- "Kamthal mein meri nansal hai. Meray mama ka naam Narain Singh hai, Meri maan ka naan Dropa hai. Bhagwan Singh aur Khem Singh ki behnain Kamthal mein byahi hain. Ek ka naam Tohfa our Doosray ka naam Baikuntha hai. Main bhaiwahan aatajata Roon. Aur yeh loag bhi aatay heir. Khooob achchi tarah say jantay heir." 15. This statement of the accused read with the evidence quoted above creats a doubt that the accused Khase was not unknown to the witnesses. It may further be noticed that Khase was arrested at Gurai Bazar and brought to the Police Station at 10 O' Clock on 22.5.68. He was detained at the Police Station for three hours and sent to District jail at 1. P.M. Police Station Iglas is only 3 miles from Ahal. It was not difficult for the prosecuting agency to have shown the accused appellants to the witnesses at the Police Station during his detention of three hours, which has not been satisfactorily explained. From a perusal of the identification evidence I find that Khem Karan, Bhagwan Singh Lokman and Niranjan Singh identified the accused correctly without making any mistake at all. It is likely that the accused was shown to the witnesses, otherwise the identification may not perhaps have been so perfect. Be that as it may, a doubt is created in my mind as to the participation of this appellant in the occurrence in question. I shall therefore not hazard a conviction of accused Khase solely on the basis of the identification evidence. In view of my finding that the prosecution witnesses were not in a position to identify Khase when he was in the process of running away after the commission of the offence. My conclusion is that the benefit of doubt must be extended to this appellant. 16. Having considered the entire evidence on the record and the facts and circumstances of the case, I am of opinion that Criminal Appeal No. 132 of 1969 Khase v, State must be allowed. Khase is in jail. He shall be released forthwith unless required in some other connection. Criminal Appeal No. 755 of 1969 filed by Sardar Singh is dismissed. This accused is in jail. Khase is in jail. He shall be released forthwith unless required in some other connection. Criminal Appeal No. 755 of 1969 filed by Sardar Singh is dismissed. This accused is in jail. He shall serve out the rest of the sentence awarded to him. 17. A certified copy of this judgment shall be placed on the record of the connected Criminal Appeal No. 755 of 1969 Sadar Singh v. State.