JUDGMENT 1. . - This appeal arises out of the judgment of the learned Additional Sessions Judge, Dholpur, dated August 28, 1973, by which he convicted the appellants under sections 395 and 397, IPC and sentenced them each to rigorous imprisonment for seven years on each court and a fine of Rs. 1,000/- in default to further rigorous imprisonment for six months. 2. I have heard arguments and examined the record. 3. On the night intervening 18th and 19th December, 1972, a dacoity took place in District Bharatpur in the village of Tikapura in the house of Indrapal PW 10, Padam Singh PW 6 and Gyasiram PW 5. Accused appellant Jahan Singh is alleged to have been caught by the villagers at the time of the occurrence. It appears from the record of the court of the Munsiff-Magistrate, Dholpur, that accused Mata Prasad and Nemi Prasad surrendered in the court. The police submitted final report under section 169 Cr. P. C. against Mata Prasad and he was discharged on 26-2-73. Accused Prabhati, Ramsia, Bhanwaria, and Ramlal were proceeded against under section 512, Cr. P. C. Accused Dewansingh was produced from the Jail at Agra. However, the police submitted final report in respect of Dewan Singh and he was discharged on 2-4-73. Similar report was made respecting Prabhati, woo was discharged on 24-4-73. It further appears that only three persons, namely, Jahan Singh, Nemi and Mawasi alias Ramsia, came to be tried by the learned Additional Sessions Judge, who by his aforesaid judgment acquitted Mawasi alias Ramsia and convicted the remaining two. Hence this appeal. 4. At the time of the trial, the prosecution examined 14 witnesses, the last of which was examined on 25-8-73. On that date investigating officer Ghan Shyam was not present. The learned trial judge closed the prosecution evidence, because he considered that sufficient time was allowed to the Assistant Public Prosecutor to produce prosecution witnesses and no more time could reasonably be allowed. 5. In his statement under section 342 Cr. P. C. Jahan Singh pleaded that he was going to Rajakhera in the weekly `bazar' to purchase a buffalo. He had Rs. 1,000/- with him. The prosecution witnesses caught him and thereafter he was arrested by the police Accused Nemi Prasad stated that he is a cultivator and he never came to the village of the prosecution witnesses and knew nothing of the occurrence. He had Rs. 1,000/- with him. The prosecution witnesses caught him and thereafter he was arrested by the police Accused Nemi Prasad stated that he is a cultivator and he never came to the village of the prosecution witnesses and knew nothing of the occurrence. The accused also produced two witnesses in defence. 6. The learned trial Judge held that more than 5 dacoits committed dacoity in the house of Indrapal, Padamsingh and Gyasiram ; carried away silver and gold ornaments, clothes and cash amount of Rs, 1,030/- or 1,040/-. According to the learned trial Judge, it was proved by the prosecution witnesses that Jahan Singh was caught on the spot and one country made pistol with nine live cartridges loaded in the pistol, were found in his possession. As regards the accused Nemi, the finding of the learned lower court was that he was caught hold of by Sobaran PW 9 and Sobaran had an ample opportunity to see the accused who was Sashing his torch light, Sobaran also identified accused Nemi in a test parade, hold by Laxmiraj First Class Magistrate PW 12. Thus, it was held that accused Nemi also formed part of the dacoit party. Since both the accused persons were armed with deadly weapons, Jahan Singh with a country made pistol and Nemi with a gun, the learned trial Judge convicted both the appellants under sections 395 and 397 IPC, 7. Now, a perusal of the evidence on record will show that Mst. Jaidevi PW I deposed that she bad come to attend the marriage of the daughter of his brother Indrapal and was sleeping along with her sister-in-law Mst. Ratandevi PW 2, wife of Padam Singh. The doors of their house were closed. About 5-6 persons opened the doors and entered the house and began to take away their ornaments. When the dacoits retreated after the commission of dacoity. one of them was caught on the spot, by Moolaram. Towards the end of her cross-examination, she stated that some of the accused persons had muffled their faces. 8. Mst. Ratan Devi PW 2 gave a list of the ornaments, clothes and the cash amount of Rs. 1,030/-, which the dacoits had taken away. She did come to know that one of the dacoits was caught, but she did not see him, 9. Mst. Janka PW 3, wife of Indrapal, was sleeping inside her house. 8. Mst. Ratan Devi PW 2 gave a list of the ornaments, clothes and the cash amount of Rs. 1,030/-, which the dacoits had taken away. She did come to know that one of the dacoits was caught, but she did not see him, 9. Mst. Janka PW 3, wife of Indrapal, was sleeping inside her house. Nearby her was there sleeping Baijanti PW 4 wife of Gyasiram. She came out of the house when the dacoits had left, but she saw that one of them had been caught. When the dacoits entered the house, they were flashing their torches and some of them were armed with `lathis' and others with fire weapons. 10. Mst. Baijanti PW 4 gave a similar narration and gave a list of the ornaments, which had been carried away by the dacoits. She stated that Sobaran was sleeping outside and he was over-powered by some of the dacoits when they entered the house. 11. Gyasiram PW 5 stated that when the dacoits were running away, Mooia was able to catch one of them. From possession of the dacoit so caught, a country made pistol with cartridges both live and discharged, were recovered. He stated in cross-examination, that Jahan Singh was caught about 10-12 hands away from his house. He told that accused Jahan Singh had given out his name when he was caught and he knew his name by the time the report was lodged in the police but he failed to mention the name of Jahan Singh in the first information report. In his police statement, also, the name of Jahan Singh is omitted. Further on be stated that in the beginning the dacoit was about ten paces from them, but later on (when he was caught) the distance was of one field.' 12. Padam Singh PW 6 has stated that the police had arrested the dacoit, which they had been able to catch at the time of the occurrence. The fire arms were also recovered from the possession of the dacoit. The police also took those articles in their possession. In cross-examination he stated that some of the dacoits had muffled their faces. According to him the night was moon-lit and not dark. 13. Chokhiram PW 7 deposed that he was awakened by the noise. He saw some people, though he was short of sight. The police also took those articles in their possession. In cross-examination he stated that some of the dacoits had muffled their faces. According to him the night was moon-lit and not dark. 13. Chokhiram PW 7 deposed that he was awakened by the noise. He saw some people, though he was short of sight. One of the dacoits gave a `lathi' blow on the head and hand to one of his brother. He touched Jahan Singh by hand before the trial Judge and stated that he was the person caught by them and from whose possession fire arms were recovered. Jahan Singh refused to disclose his name to them. It was only when the police arrived that he gave out his name. The dacoits were pursued to a distance of four fields towards the western side of the village. 14. Moola PW 8 stated that about 10-12 persons had raided their houses. When the villagers assembled and began to throw bricks and stones on the dacoits, they opened fire. It was at that time that be was able to catch one of the dacoits. He was the accused Jahan Singh. Jahan Singh was caught near the `chabutari' adjacent to their house. In his statement Ex. D2 made before the committing court portion C to D, he had stated that Jahan Singh was caught in the house, but when confronted, he resiled from that statement. 15. Sobaran PW 9 stated that two of the dacoits caught him by the neck when he was sleeping and over-powered him. Rests of the dacoits entered the houses of Padam Singh and Indrapal and continued to loot for about one and a half hours. All this while, the two dacoits continued to keep him in their control. When the other dacoits finished their job and came out it was then that he was released. He shouted and Indrapal, Padam Singh and Gyasiram came running. Moola, who was sleeping in a hut nearby, ran after the dacoits and managed to catch one of them. He identified that person to be Jahan Singb. He also identified accused Nemi as the person who had over-powered him and had pointed out his gun at him. He did not happen to see the accused after that day until he recognised him in the test identification parade. In his committing court statement Ex. He identified that person to be Jahan Singb. He also identified accused Nemi as the person who had over-powered him and had pointed out his gun at him. He did not happen to see the accused after that day until he recognised him in the test identification parade. In his committing court statement Ex. D3 portion A to B, he has stated that one man remained in charge of him and be managed to rescue himself from him. He denied this statement and stated that two persons had over-powered him. The persons who remained with him had muffled their chins, but their faces were fully visible. 16. Indrapal PW 10 was the person, who also lodged the first information report, deposed that Moola had caught one of the accused. He was then tied to a tree in the chowk. In his statement Ex. D 4 Committing court he had stated at portion C to D that the dacoits had muffled faces. He resiled from that statement but then retrieved by saying that all the accused were not so muffled. He further stated that Jahan Singh was caught about 4-5 paces from the `Gont.' 17. Roshan Singh PW 11 is the `Sarpanch'. He stated that he reached the place of occurrence at 4,00 a. m., where he found that Jahan Singh had been tied. The police arrived in the morning and arrested Jahan Singh and recovered the weapons from his possession. The accused had said that his name was Jahan Singh. 18. Laxmi Lal PW 12 was Magistrate Dholpur. He held the test identification parade in respect of the accused Nemi. He was identified only by witness Sobaran Singh. The identification proceedings are Ex. P4. An examination of Ex. P4 shows that Sobaran Singh wrongly identified one Mohan Singh in the parade. 19. Dr. Mohan Lal PW 13 examined Moola on 20-12-72 and found an abrasion on his skull and another on his left wrist. 20. Tara Chand PW 14 was the Magistrate who conducted the test identification parade in respect of Mawasi and Prabhati, which is no more relevant for our purpose. 21. Bhagwan Singh DW 1 is a relative of accused Jahan Singh and resides in Mahuan-ka-Pura. He deposed that Jahan Singh had come to purchase a buffalo in Rajakhera and had spent his night with him. 21. Bhagwan Singh DW 1 is a relative of accused Jahan Singh and resides in Mahuan-ka-Pura. He deposed that Jahan Singh had come to purchase a buffalo in Rajakhera and had spent his night with him. He left his house for Rajakhera at 4 a. m. He was supported in this story by his friend Fateh Singh DW 2. 22. It is upon this evidence that the appellants have been convicted by the learned lower court. 23. The learned counsel for the appellants pointed out at the out-set two infirmities in the case. Firstly, that no article of theft was recovered by the police, and secondly, the investigating officer has not entered the witness-box and the accused have been deprived of their right to question the fairness of the investigation and more particularly, whether the accused after arrest were kept `baparda' or not. Even the arrest memo has not been proved, and in respect of the pistol, which is said to have been recovered from the possession of Jahan Singh, no recovery memo was brought on the record. 24. It is true that the investigating officer was an important witness and should have been examined by the learned trial judge. The manner in which the learned trial court closed the evidence of the investigating officer is far from satisfactory. It was the duty of the trial judge to have enforced the appearance of the go for the purpose of giving evidence. He appears to have abdicated his function and closed the evidence in a summary manner. I deprecate the tendency on the part of the trial courts to close the evidence of important witnesses and decide a case rather in haste. Yet, the question that calls for determination is whether non production of the investigating officer affects the prosecution case adversely. 25. The learned counsel in this connection, referred me to J. K. Devaiya v. State of Coorg, AIR 1956 Mysore 51 at para 18 , wherein it was observed that an accused is entitled to know from an investigation officer what witnesses have been examined in the course of investigation, whether the witnesses examined in court were examined by him or not and what story the witnesses told before him and whether the same is consistent with the evidence given before court. This decision shows that non-examination of the investigating officer is a serious omission, but that in itself will not entitle the accused to an acquittal." 26. The fact that no 'ornaments have been recovered will also not entitle the accused to any benefit, in the face of the evidence that has been laid against them. 27. Now, let me first examine the case of Jahan Singh. There is no more any doubt from the evidence that I have discussed above that Jahan Singh was caught immediately after the commission of the dacoity when the dacoits were leaving the place of occurrence with their booty. The learned counsel urged that there is a contradiction in the prosecution case in as much as that at the time of the trial the witnesses stated that they had caught Jahan Singh in the house itself. But in their earlier statements before the committing court they had said that he was caught at a distance of about 5-6 fields when the dacoits were being chased. The plea of the accused has been that he was caught when he was on his way to Rajakhera. The substance of the argument is that in this state of prosecution evidence the defence version is probabilised and it cannot be held that he was one of the dacoits, as he was caught immediately after the occurrence near the scene of occurrence. 28. I have considered over these objections and I do not find any force in them, There is no enmity between the prosecution witnesses and accused Jahan Singh. It it therefore, difficult to subscribe to the suggestion that the victim of the dacoity would catch hold of a man just because he happened to be near about the place of occurrence.. If the accused were going, as he says, innocently for purchasing a buffalo in the early hours of the day, then, it is rather difficult to explain how he happened to be in possession of a pistol. An empty cartridge and a missed cartridge showed that it was fired too. The prosecution case also is that the dacoits had opened fire. Some of the witnesses had no doubt said at one stage that the dacoit was caught in the house and earlier they had said that he was caught at a distance of 5-6 fields. An empty cartridge and a missed cartridge showed that it was fired too. The prosecution case also is that the dacoits had opened fire. Some of the witnesses had no doubt said at one stage that the dacoit was caught in the house and earlier they had said that he was caught at a distance of 5-6 fields. In this respect, the evidence of witness Moola (PW 8) is most material. It was he who dared to catch hold of Jahan Singh and in the struggle got two injuries as well. In his committing court statement he did say that he caught hold of Jahan Singh in the house and at the time of the trial he said that he had caught him near the `chabutari' of `neem' tree near their `Gont'. He had been able to catch Jahan Singh just when he had run about 5 paces, though in his committing court statement portion E to F he had said that he had caught him at a distance of 4-5 fields. There is thus contradiction regarding the exact place where he happened to catch Jahan Singh, but it is not such a material contradiction as will derogate from the fact that he was able to catch one of the dacoits after the commission of the offence at a short distance. The explanation of his presence given by the accused only lends assurance that he was caught at the alleged time and place. If he were an innocent traveller who had come to purchase a buffalo, he would not chose the hour for his journey he has shown he proceeded on. I, therefore, uphold the findings of the learned lower court that Jahan Singh was one of the dacoits, who was caught at the spot. 29. The learned counsel then submitted that no case under section 397, IPC was made out against accused Jahan Singh. The provisions of section 397 IPC are attracted if at the time of committing dacoity the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. In that case the punishment prescribed is imprisonment for not less than 7 years. Even in respect of section 395, the punishment prescribed is imprisonment for life or with rigorous imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years. In that case the punishment prescribed is imprisonment for not less than 7 years. Even in respect of section 395, the punishment prescribed is imprisonment for life or with rigorous imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years. If the case of accused Jahan Singh does not fall under section 397, which it does, as I will presently show, there is no case for reduction of his sentence below seven years because such an extent of sentence is covered under section 395 itself. However, all the witnesses have stated that accused Jahan Singh bad a pistol, one empty cartridge and one missed cartridge, which unmistakably point out that he had in his possession a deadly weapon and used the same at the time of committing the dacoity. I, therefore, further uphold the conviction of Jaban Singh under sections 395 and 397, I.P.C. as well. 30. Now, remains the question of accused appellant Nemi. The evidence against Nemi comprises of a solitary witness, namely, Sobaran PW 9. The learned counsel for the appellant submitted that the evidence of a single witness should not be believed unless he is of sterling merit. Moreover, his claim to have fixed the identity of appellant Nemi, is not free from doubt. It is in evidence that some of the accused persons had muffled their faces. Though Indrapal now denies, yet in his statement Ex. D4 he had clearly stated that the accused had their faces muffled. It was a dark night and it was not possible for a terror striken witness like Sobaran to have been able to capture in his mind the features of the dacoit. The testimony of Sobaran is further not free from doubt as at the time of the test identification of appellant Nemi, he picked up a wrong person too. Therefore, it is not safe to act upon the testimony of Sobaran as far as identification of the accused appellant Nemi-is concerned. 31. The testimony of Sobaran is further not free from doubt as at the time of the test identification of appellant Nemi, he picked up a wrong person too. Therefore, it is not safe to act upon the testimony of Sobaran as far as identification of the accused appellant Nemi-is concerned. 31. In this connection the learned counsel first cited Kashmira Singh v. The State of Madhya Pradesh, AIR 1952 SC 159 (at para 2) for showing that where the crime committed is a particularly cruel and revolting one, it is necessary to examine the evidence with more than ordinary care Jest the shocking nature of the crime might induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law. 32. The next case cited was Chandra Pal v. State, AIR 1954 All 684 (head note `c'), wherein it was observed that it is not safe to rely on the testimony of one witness for convicting a person of the offence of dacoity especially when there is no other circumstantial evidence to connect him with the crime. 33. In the State of Orissa v. Maheshwar, AIR 1964 Orrisa 37 (at para 8) the identifying witnesses never knew the accused from before and the accused were strangers to them. The occurrence took place in dark night. Torch lights were flashed and the witnesses identified the accused. The accused persons had no distinctive marks in their appearance to fix their features indelibly upon the minds of the witnesses. The F.I.R. also did not contain any description of any of the accused persons. It was held that no reliance would be placed on the evidence of such identifying witnesses. 34. The last case cited is Budhsen v. State of U.P., AIR 1970 SC 1321 (at page 1325, 1st column). 35. In that case it is observed that there are two factors which seem to be of basic importance in the evaluation of identification. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. It was urged on the basis of these observations that in this case the witness Sobaran made a mistake in as much as he identified one wrong person, and though Sobaran said that the accused was not shown to him beforehand, but in the absence of the evidence of the investigating officer, it cannot be held that the accused was kept `baparda' and the witness had no opportunity of seeing the accused before the test identification parade. 36. The learned Public Prosecutor relies upon Thevar v. State of Madras, AIR 1957 SC 614 for the purpose of showing that no particular number of witnesses are required for the proof of any fact. The evidence has to be weighed and upon coheted. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. If the court is satisfied that the evidence is reliable did free from all taints which tend to render oral testimony open to suspicion, it become its duty to act upon such testimony. 37. Considering all the circumstances of the case it appears to me that though in given circumstances, evidence of a sole witness can be relied upon, but in this case the evidence of Sobaran suffers from doubt. There is no evidence led by the prosecution that the accused Nemi was kept `baparda' and there was no chance of his having been previously by Sobaran. We do not even know when he was arrested and how early after his arrest he was sent up for test identification. Two persons, namely, Nemi and Mata Prasad were sent for test identification out of whom he correctly identified Nemi Prasad, but confused in the matter of the identity of Mata Prasad. It is also in evidence that the accused had covered their faces. Two persons, namely, Nemi and Mata Prasad were sent for test identification out of whom he correctly identified Nemi Prasad, but confused in the matter of the identity of Mata Prasad. It is also in evidence that the accused had covered their faces. In these circumstances, it will certainly be not safe to act upon the test identification of the appellant Nemi, which is not strong enough to corroborate the identification made in the court by him. Beyond the evidence of Sobaran, we have no other evidence to connect him with the event. But I should not be understood to lay down as a general rule that the identification made at the trial, cannot be believed unless corroborated by a test identification or that the evidence of`Baparda'is a must before any test identification can be relied upon. Proper guidance in this respect can be found in State of Rajasthan v. Ranjit . 38. As a result of the aforesaid discussion I direct as follows ; (1) The appeal of accused-appellant Nemi is accepted and he is given the benefit of doubt and acquitted of both the offences he is convicted of. His sentence is set aside, He shall be released forthwith, if not required in any other case. (2) The appeal of accused appellant Jahan Singh is dismissed. 39. The learned counsel for the appellant made an oral prayer that leave to appeal to the Supreme Court as far as the accused appellant Jahan Singh is concerned, be granted. `It is not a fit case for appeal to the Supreme Court. The prayer is rejected. *******