S. K. KAUL, J. Appeal No. 481 of 1973 has been filed by Tika Ram and Bahadur. It is a represented appeal. Appeal No. 501 of 1973, has been filed by Mangoo Lal from Jail Since both these appeals are in respect of one transaction and one judgment, there were heard together and shall be disposed by one judgment. 2. The appellants have come in appeal to this court against their sentence and conviction to undergo seven years R. I. under Section 395, I. P. C. 3. Briefly stated the prosection story is that in between the night of 15/16th February, 1972, fifteen or sixteen dacoits commited dacoity at the houses of Puttu the [complainant, Mangey, Kakrand Dular Karoria and Ram Milan in village Jamalpur, P. S. Pali, District Hardoi. The dacoity was committed for about one hour. A lantern was burning in front of the Khaprail of the house of Puttu. The dacoits were armed with five arms. They were also flashing torches. Puttu had raised an alarm and this had brought to the scene of occurrence several witnesses. Chandra Sen had brought with him a licenced gun. Several witnesses had torches which they were flashing during the commission of the dacoity. Ram Lal had also set fire to a heap of Patel haves which were stored about 12-13 paces towards northwest of the well situate near the Phatak of Puttus house. On this account the scene of dacoity was sufficiently lighted up. A lantern was burning in the Bar-otha of the house. The features of the dacoits in the abovementioned lights had been clearly noticed. After committing the dacoity and looting the property from the houses of the abovementioned persons the dacoits had managed to make good their escape. Puttu lodged F. I. R. at P. S. Pachdeora on 16th February, 1972, at 8 a. m. 4. Investigation was taken in hand in the usual manner. Tika Ram was arrested on 21st March, 1972, at 4-30 a. m. from his house in village Shahabja-pur. He was made bapurdah. He was was also found to be carrying S. B. B. L. Gun about which he had a licence. His gun his licence book and Peti" containing 11 cartridges were taken possession of. These were sealed and a memo prepared. He was made bapurdah. He was was also found to be carrying S. B. B. L. Gun about which he had a licence. His gun his licence book and Peti" containing 11 cartridges were taken possession of. These were sealed and a memo prepared. The Investigating Officer went to village Gularia Nagla and arrested Bahadur from his house at about 7 a. m. He was also made a bapurdah. Mangoo Lal was arrested by constables Brij Pal Singh and Mata Prasad on 24th March, 1972, at 4-30 p. m. from a culvert near village Narainpur. He was made bapurdah. All these three accused in bapurdah condition were brought to the police station and via police station they were entered in the District Jail in bapurdah condition. The identification proceedings of these three accused took place on 14th April, 1972, with all relevant precautions. Tika Ram secured identification of Puttu, Dulor Makran Moti Ram, Lal Chandra Sen. Bahadur was identified by Puttu Karori, Ram Milan Dular, Moti Chandra Sen and Mangey. Mangoo was identified by Karori, Dular Moti Ram Lal and Chandra Sen. It may be noted here that Puttu committed two mistakes and Ram Lal committed one mistake. After receipt of the result of the identification and completing investigation a charge sheet was submitted and on that basis all these three accused were asked to stand their trial under Section 395, I. P. O. 5. The defencejof these accused was that they had nothing to do with this occurrence. Tika Ram further contended that actually he was arrested on 20th March, 1972. The Sub-Inspector fired five cartridges from his gun and then took possession of the empty cartridges alongwith the gun. He was also known to the witnesses and he had been shown to the witnesses at the police station. The defence of Bahadur was that he was shown to the witnesses after his arrest. The defence of Mangoo Lal further was that he was known to the witnesses and that he had been detained in the police station for one day and one night and during this period he was shown to the witnesses. 6. The learned Sessions Judge on an appraisement of the evidence found that the prosecution case was fully made out and as such he sentenced and convicted the accused as above. 7. I have heard the learned counsel for the appellants Tika Ram and Bahadur. 6. The learned Sessions Judge on an appraisement of the evidence found that the prosecution case was fully made out and as such he sentenced and convicted the accused as above. 7. I have heard the learned counsel for the appellants Tika Ram and Bahadur. Mangoo Lal was present and on being questioned he pleaded his innocence. 8. So far as the factum of dacoity is concerned it admits of no doubt. The consistent story of the prosecution witnesses has not been challenged in cross-examination. Properties also have been looted away from several houses of it is impossible to believe that this story could have been manufactured. On the question of light apart from torches and lantern I find that Patel had also been set on fire and this Patel fire must have sufficiently lighted up the scene of dacoity. Coming to the question that the accused were known to the witnesses of this case the learned Sessions Judge has given good reasons and entirely agree with what he had mentioned. I find, however, that in the identification memo of Tika Ram there were 11 prominent marks in column No. 3. A close scrutiny of these special marks, go to show that at item No. 5 two of both lobes of ear were found to be pierced. At item No. 7 there were two of Til marks on the forehead. Similarly at item No. 9 there were two Til marks on the right cheek. The magistrate tried to justify the fairness of the identification by showing as if he had tried to cover these prominent marks which were close to each other by one paper chit. But in column 4 what was mentioned by him was that on all the prominent marked noted in column No. 11 he had pasted paper chits. It appears that even the Additional Sessions Judge could not pursuade himself to the view expressed by the magistrate and wenf on to observe that presuming, however, chits had been pasted upon the face of Tika Ram at the time of his identification proceedings. It would not be proper to hold that his face had become a mark and the witnesses were not in a position to recognise him. It would not be proper to hold that his face had become a mark and the witnesses were not in a position to recognise him. I must remark that the learned Additional Sessions Judge completely ignored the Bench Ruling of this Court which clearly laid down the principle that if more than ten chits were pasted on the face it would become more or less a mark so that possibility of recognition would be resulted out. Ignoring a well settled view of this court by the learned Additional Sessions Judge was extremely undersirable. On this account alone Tika Ram is liable to be acquitted inasmuch as his identification is rendered. 9. Coining to the case of Bahadur, I find that in column 3 the magistrate noted that this accused had deep pox marks on his face. In column 4 he mentioned that he had pasted paper chits on all the prominent marks noted by him in column 3. He did not mention in column 4 that he had mixed identical undertrials alongwith Bahadur. Indeed on this very page in connection with Mangoo Lal the magistrate took precaution by noting in column 4 that the persons who were mixed with Mangoo Lal too had deep Musasa marks had the same type of marks. The magistrate when questioned in cross-examination tried to justify his action with Bahadur that he had mixed similar undertrials though inadvertantly he had committed to mention this fact. He confessed that he had conducted hundered of identification parades in that relevant year and it was not possible for him to remember 01 ally the precaution taken by him. That being so. It is not possible for me to accept this explanation of the magistrate that ID the parade of Bahadur the undertrials so mixed had pox marks. On the other hand the inference that can be drawn from the reading of columns 3 and 4 is that Bahadur had deep pox marks and these marks were covered with paper chits. That being so identification evidence against Bahadur as well has to be rejected. Coming to the case of Mangoo Lal I find that he was arrested very shortly after the commission of the dacoity. Bapurdah evidence again is cogent and convincing. There was no question of accused being shown to the witnesses or being known to them. That being so identification evidence against Bahadur as well has to be rejected. Coming to the case of Mangoo Lal I find that he was arrested very shortly after the commission of the dacoity. Bapurdah evidence again is cogent and convincing. There was no question of accused being shown to the witnesses or being known to them. All the prominent marks which were only nine in numbers of Mancoo Lal were noted and precaution taken to conceal were fully set out in column No. 4. Mangoo Lal secured good identification of Ft Ws. Karori Mular and Moti. These witnesses did not commit any mistake. In my view identification evidence of these witnesses is sufficient to connect this accused with the offence with which he was asked to stand his trial. Considering however, that this accused is in jail since the date of his arrest I think ends of justice would be amply met with if his sentence is reduced to five years. With this modification in sentence while appeal of Mangoo Lal is rejected appeal of Tika Ram and Bahadur is allowed. The sentence and conviction awarded to accused Tika Ram and Bahadur are set aside. Tika Ram is on bail. He need not surrender his bail bonds are cancelled and sureties discharged. Bahadur is in jail. He shall be set at liberty forthwith unless wanted in connection with some other case. Partly Allowed. .