JUDGMENT 1. - The six appellants, namely, Ghasiram, Asgarkhan, Homsingh, Ramesh and Shitalprasad alias Chhitaria, have been convicted for the offence of dacoity and sentenced to 7 years' rigorous imprisonment and to pay a fine of Rs. 500/- each, in default of payment of fine to under go 4 months' rigorous imprisonment each. 2. The dacoity took place at about 8 p.m. on June 17, 1974 in the houses of Habulal (PW. 1.) and Kalyan (PW. 2.) in a village called Neniyaki. The dacoits were 10 or 12 in number and they were armed with deadly weapons. They entered into the houses of Habulal (PW. 1.) and Kalyan (PW. 2 ) and assaulted Kalyan (PW. 2) and then committed theft of certain gold and silver articles. Hearing the cries of these two persons, a number of villagers including Devilal (PW.3), Dojiya (PW.5), Radheyshyam (PW. 6) and Jamnalal (PW. 7) living in the neighbouring houses, came out running to the spot. Seeing them the dacoits ran away with the booty. While running, Ghasiram (A. 1) fell down and he was caught. He was found in possession of a broken pistol which contained two misfired cartridges. On the next day. PW. 1 Habulal went to the police station at Kailadevi and lodged a complaint as per Ex. (P. 1.) Bhagwati Prasad (PW. 11) S. H. O., at Police Station, Kailadevi, made enquiries and therefore Habulal gave information that certain gold and silver articles were taken away by the dacoits. On the basis of this information, a case was registered at about 12-30 noon on June 18, 1914. However, the investigating officer did not go to the village on that day, but went there the next day and arrested Ghasiram A. 1 and recovered the country-made pistol. Thereafter on different dates, the other accused persons were arrested and it must be mentioned here that no articles said to have been the subject-matter of dacoity, were recovered from any of accused persons. 3. The acoused were identified by all the witnesses mentioned above in different identification parades held by Sohanlal, Munsif-Magistrate, Karauii (P. W. 13). This in substance is the case of the prosecution. 4. The question is whether there was dacoity as stated to be made out by these witnesses and if there was such a dacoity, whether the accused were the persons who were involved in that crime ? 5. This in substance is the case of the prosecution. 4. The question is whether there was dacoity as stated to be made out by these witnesses and if there was such a dacoity, whether the accused were the persons who were involved in that crime ? 5. In the complaint Ex. P. I, the complainant did not even mention that gold and silver articles were stolen from his house. It is only after he was questioned by the police officer, he came forward with the story that certain gold and silver articles were stolen from his house. Habulal (P. W. I) and Kalyan (P.W.2) have stated that Kalyan (P.W. 2) was assaulted by the dacoits. The medical evidence clearly shows that the story given out by these two witnesses cannot be true. Kalyan (P.W. 2) had some bruises and abrasions. These injuries being very minor, could as well have been caused while Kalyan (P.W. 2) was working in his field. If a number of persons armed with deadly weapons went with the avowed object of committing theft and in doing so used force then these would not have been the injuries but one would have expected more serious injuries on his person. Therefore, it appears to me that the story of dacoity, as put forth by the prosecution appears to be not genuine one. 6. Even assuming that such dacoity was committed by a number of persons, it is to be seen whether there is satisfactory evidence to show that these accused along with some others, were the persons who committed the dacoity. The (earned public prosecutor appearing on behalf of the State strenuously contended that Ghasiram (A. 1) was caught red-handed and at any rate, his complicity in the crime has been established. It is no doubt true that all the witnesses have stated that Ghasiram (A. 1) was caught while running. Ghasiram (A. 1) has given an explanation. That explanation is that he had come to that village to purchase cattle and when he was going in the street, he was caught by 'the villagers, that appears to be probable. However, the learned prosecutor contended that the man was found in possession of a country-made pistol and that circumstance points out that he was one amongst the dacoits. That explanation is that he had come to that village to purchase cattle and when he was going in the street, he was caught by 'the villagers, that appears to be probable. However, the learned prosecutor contended that the man was found in possession of a country-made pistol and that circumstance points out that he was one amongst the dacoits. If really the country-made pistol was found in possession of Ghasiram (A. 1), as contended by the learned public prosecutor, there is a possibility of inferring that he was one amongst the dacoits. But in this case, it appears to me there was no such weapon with Ghasiram (A. 1) when he was caught. If really he was caught with a pistol, the complainant would not have failed to mention this fact in Ex. P. 1. I say this because the complaint was given not on that day but on the next day at about 12.00 noon. Whatever that may be, it is difficult to believe the prosecution story, at any rate, that Ghasiram (A. 1) was actively concerned along with the other dacoits in committing theft in the house of Habulal (P. W. 1). 7. So far as the other accused are concerned, the only evidence on which reliance is placed is the identification of these accused persons in identification parades held on different dates. Sohan Lal, Munsif-Magistrate, Karauli (P. W. 13), who held the identification parades, has categorically stated that one of the accused-per-sons, even before the identification parades was held, told him that he and others were shown to the witnesses, before they were brought for identification. That apart, even according to the prosecution, the incident happened at about 8 p. m. There is no evidence whether there was any light at that point of time. If the dacoits came and raided the house of Habulal (P. W. 1 ) and on hearing cries ran away, it would be impossible for any body to remember the identity of any of those persons who ran away. If they could not have identified them at the time of the incident, even if they had identified in identification parade, that identification cannot be accepted to establish the case of the prosecution that those were the accused who committed the crime. The incident happened on June 17, 1974 and the identification parades were held long after that. If they could not have identified them at the time of the incident, even if they had identified in identification parade, that identification cannot be accepted to establish the case of the prosecution that those were the accused who committed the crime. The incident happened on June 17, 1974 and the identification parades were held long after that. If the witnesses could not have identified any of the accused persons at the time of the occurrence, their identification subsequently is of no consequence. The evidence in this case shows that it was a dark night and the dacoits ran away hearing the cries. In such a situation it becomes impossible for any body to remember the features of their faces, their built, their structures to identify on subsequent dates. If basically the witness could not have known who the dacoits were their identification at a subsequent stage cannot be a ground to hold that those were the persons who committed dacoity. I have examined the evidence relating to identification of the accused persons, and I am convinced that this is a make- believe story. It appears to me that before identification parade the accused persons, in all probability, were shown to the witnesses or at any rate, they had opportunity to see them and if thereafter the accused were identified, it will have no evidentiary value. 8. For the reasons stated above, I hold that the prosecution have failed to prove the case satisfactorily against any of the accused persons.In the result, I allow this appeal, set aside the order of conviction and sentence passed against the accused persons, namely, Ghasiram, Asgarkhan, Homsingh, Ramesh and Shitalprasad alias Chhitariya. I direct, that they be set at liberty for the with. *******