JUDGMENT 1. - These three appeals filed by accused Balia @ Balaram, Kalu@Kalu Singh and Ram Kumar are directed against the judgment of the learned Additional Sessions Judge, Kota, dated December 22, 1975, whereby he convicted and sentenced the accused appellants as under: 1. Accused Balkarsingh and Kalu were convicted under section 397 IPC and sentenced to rigorous imprisonment for 7 years and a fine of Rs. 1000/- each. In default of payment of fine each one of them to suffer further rigorous imprisonment for six months. 2. Ram Kumar was convicted under section 412 IPC and sentenced to rigorous imprisonment for four years and a fine of Rs. 1,000/-. In default of payment of fine to further suffer rigorous imprisonment for six months. 2. As all three appeals relate to the same occurrence and arise out of the same judgment, as such they are being disposed of by one common judgment. 3. The facts giving rise to these appeals are that on the night of November 10, 1973, nearly at 8-15 p.m. PW 11 Dwarka Lal was returning on a bicycle after enjoying a fair of Rangpur Keshorai Patan. The three appellants alongwith one more namely Kallash (acquitted by the trial court) meet him in the way. Two of them viz. Balia @ Bala Ram @ Balkar and Kalu @ Kalu Singh were armed with pistol and revolver whereas the remaining two were armed with other deadly weapons. All the four stopped him, asked him to raise his hands up and robbed of the property which he was carrying with him. It is alleged that he was deprived of a Radio Ex. 5 a Pent Ex. 6 and a lighter Ex. 4. The same group of miscreants later on met P. W. 2 Tejbhan. He was also robbed of and deprived of shirt, pair of trousers, and Pant marked Ex. 1, 2 and 3, respectively. The first information report of this incident Ex. P. 11 was lodged at the police station Bhimganj Mandi at 9.30 p. m. The distance between the police station and the place of incident is 51/2 miles. Accused appellants Balkar Singh @ Balia @ Bala Ram, Kalu Singh @ Kalu, Ram Kumar, and Kailash (acquitted by the trial court) were arrested on November 11, 1973. Their arrest memos are Ex. P. 14 Ex. P. 16, Ex. P. 17 and Ex. P. 15 respectively. Accused appellants Balkar Singh @ Balia @ Bala Ram, Kalu Singh @ Kalu, Ram Kumar, and Kailash (acquitted by the trial court) were arrested on November 11, 1973. Their arrest memos are Ex. P. 14 Ex. P. 16, Ex. P. 17 and Ex. P. 15 respectively. Accused Balkar Singh after his arrest expressed his desire to get the stolen property recovered from the place of its concealment. The information memos are Ex. P/18 and Ex, P/19. Pent Art. Ex. 3 was seized from the possession of the accused which he was wearing at the time of his arrest. The seizure memo is Ex. P 6. Pistol was recovered vide seizure memo Ex. P 10. Accused Kalu @ Kalu Singh also expressed his desire to get the stolen articles discovered. The information memo is Ex. P. 20. In consequence of the information given by the accused Kalu, Radio Ex. 5 was recovered vide seizure memo Ex. P 7. A pent was also recovered from his person. The seizure memo is Ex. P 8. At the time of arrest accused Ram Kumar was wearing a pair of trousers. It was seized vide Ex. P 22. It is also alleged that the articles recovered at the instance of accused Bilkar Singh were recovered from the house of Ram Kumar. The stolen articles were got identified in the test identification parade by Tejbhan PW. 2 and Dwarka Lal PW 12. The identification memo is Ex. P 2. This test identification was conducted under the supervision of Shri Gordhan Bhatt PW 1 Tehsildar and Magistrate 2nd Class Kota. Accused persons were also put up for identification aud the test identification was conducted under the supervision of PW. 1 Gordhan Bhatt. The identification memo is Ex. 1. All the accused were identified by the two witnesses. The police after usual investigation submitted a challan against the four accused in the court of Addl. Munsif and Judicial Magistrate First Class No. 2, Kota, who committed them to take their trial under section 397 IPC. 4. All the accused pleaded not guilty to the charges and the prosecution examined 13 witnesses in support of their case out of whom PW 2 Tej Bhan and PW 11 Dwarka Lal are the victims of robbery. Munsif and Judicial Magistrate First Class No. 2, Kota, who committed them to take their trial under section 397 IPC. 4. All the accused pleaded not guilty to the charges and the prosecution examined 13 witnesses in support of their case out of whom PW 2 Tej Bhan and PW 11 Dwarka Lal are the victims of robbery. PW 13 Prakash Chand Tyagi is the Investigating Officer in this case, He was examined to prove the various recoveries made at the instance of the accused. PW. 9 Ishwar Singh is also the Investigating Officer of the same case. PW 1 Gordhan Bhatt is the Tehsildar and Magistrate 2nd Class, who was examined to prove the test identification memos prepared regarding the accused and the articles recovered. The learned Additional Sessions Judge placing reliance on the testimonies of the victims as well as other witnesses held that the occurrence did take place in the manner alleged by the prosecution. He further held that accused Balkar Singh and Kalu Singh were identified by the two victims of robbery and their testimony is reliable. It further stood corroborated by the recovery of the article's alleged to have been taken away by the accused during the course of robbery. As regards accused appellant Ram Kumar he held that the evidence of identification was not reliable because both these witnesses stated that they did not know whether Ramkumar and Kailash were present at the time of the incident. Besides that, they also admitted that Ram Kumar and Kailash were shown by the police to the test identification parade. The evidence of recovery regarding Kailash was also held not reliable. On the above finding the learned Judge acquitted accused Kailash of all the charges levelled against him. The remaining accused-appellant were convicted and sentenced as mentioned above. Hence these appeals. 5. Learned counsel appearing on behalf of the accused-appellants had read over to me the statement of PW 11 Dwarka Lal, who admitted in cross-examination that the Investigating Officer showed him all the accused prior to the holding of the test identification parade. No question has been asked re-examination to clarify this important admission made by the witness in this statement at the trial. Learned counsel for the appellants is correct in his submission that this infirmity in the prosecution case has not been considered by the learned judge while convicting the accused. No question has been asked re-examination to clarify this important admission made by the witness in this statement at the trial. Learned counsel for the appellants is correct in his submission that this infirmity in the prosecution case has not been considered by the learned judge while convicting the accused. In Delhi Administration v. Bal Krishan : AIR 1972 SC 3 , Honable Palekar J. speaking for the court, while considering the possibility of the accused being shown to the identifying witnesses observed as under : "It was not explained by the Investigating Officer why and when it was found necessary by him to bring the accused in the house where the dacoity has been committed. The learned judge entertained, therefore, a strong suspicion that the accused may have been brought to the house before the identification parade was arranged, thus affording justification to the complaints made by the accused before the Magistrate that they had already been shown to the witnesses and therefore, there was no point in their participating in the test identification in court as satisfactory, this Court would not be justified in taking different view. Therefore, the evidence with regard to identification must be left out of consideration." The same question came up for consideration before a single Bench of this Court in Ganga Singh v. State of Rajasthan, 1977 RLW 187 . His Lordship while considering the possibility of the witnesses to see the accused of that case ruled out the evidences of identification. In the case in hand there is positive evidence on record that the accused were shown to the witnesses prior to their identification by the witnesses in the test identification parade. No doubt PW 2 Tej Bhan staled that only two accused were shown to him. It does not stand to reason that when all the accused were present in the police Thana and the witnesses were given an opportunity to see them what made him to see only the two accused and not the remaining two accused appellants. Keeping in view the above infirmity in the prosecution case I hold that the evidence of identification of the accused is not reliable and thus there Is no legal evidence to connect the accused appellants with the actual participation In the robbery said to have been committed on November 10, 1973. 6. Keeping in view the above infirmity in the prosecution case I hold that the evidence of identification of the accused is not reliable and thus there Is no legal evidence to connect the accused appellants with the actual participation In the robbery said to have been committed on November 10, 1973. 6. The other evidence relied upon by the prosecution in this case is regarding the recovery of the Articles which are said to have been stolen away by the miscreants during the course of robbery. The recovery of radio Ex. 5 from Kalu Singh a pent Ex. 3 from Balkar Singh and a pair of trousers from Ram Kumar has been proved by the statement of Investigating Officer Prakash Chand Tyagi PW 13. His statement stands corroborated by the recovery memos. Simply because one of the motbirs was not examined or the other one did not support the prosecution case and wrongly identified the accused in court, cannot be held to be sufficient to discard the statement of the Investigating Officer which stands fully corroborated by recovery memos. There is no reason why Mr. Tyagi should make false and spurious recoveries in the case. It is true that by reason of vacillating statement made by PW 5 Om Prakash the prosecution was left only with the evidence of PW 13 Prakash Chand Tyagi. But this evidence regarded sufficient by the trial court to hold that the above mentioned articles were recovered from the possession of the accused. I do not see why this court should interfere with the finding of fact arrived at by the trial court. There is no rule of law that for holding a particular point to have been proved there should be more than one witness. It is only out of caution that the court insists that the evidence of an Investigating Officer should be corroborated by some independent witness. It is only a rule of prudence and not a rule of law ; if it were otherwise it would be possible for any guilty person to escape punishment by resorting to the device of bringing the panch witnesses under his influence. I do not find any reason of infirmity in the finding of the trial court that Article Ex. 3 Pent, Ex. 5 Radio and Ex. 2 pair of trouser were recovered from the possession of the accused-appellants as indicated above. I do not find any reason of infirmity in the finding of the trial court that Article Ex. 3 Pent, Ex. 5 Radio and Ex. 2 pair of trouser were recovered from the possession of the accused-appellants as indicated above. Reference in this connection may be made with advantage to Prem Ballabh & other v. State of Delhi : 1976 Cr. L. R. (S. C.) 495 . It has already been held (supra) that the evidence regarding actual participation in the robbery is not reliable, For the applicability of section 412 IPC. it is necessary for the prosecution to prove ; (1) that the property in question was stolen property (2) that the possession of such property transferred by commission of dacoity and (3) that the accused received or retained such property. In so far as the recovery of the property from the possession of the accused-appellants is concerned, unless they explain as to how they acquired possession of the property, a presumption under illustration (a) of section 114 of the Evidence Act can be held that either they ate the thieves or receivers of the stolen property knowing it to be stolen. But for the applicability of section 412 IPC the prosecution has to show something more then the mere possession of the goods. Though the recovery of the articles alleged to have been taken away during the course of robbery was made, from the possession of the accused within a short time, yet in the facts and circumstances of the case I do not consider it safe to draw an inference that the persons who possessed the property are punishable under section 379 or under sec. 412 IPC, because the articles recovered from the possession of the accused-appellants are of the nature which are usually worn or used villagers uni there was possibility of changing hands. 7. The net result of the above discussion is that the appeals are partly allowed. Conviction and sentences awarded to the accused-appellants, Balkar Singh @ Balia @ Balaram, Kalu Singh @ Kalu, under section 397 IPC are set aside. The conviction and sentence under section 412 IPC awarded to the accused appellants Ram Kumar are also set aside. All the accused appellants are convicted under section 411 IPC. Conviction and sentences awarded to the accused-appellants, Balkar Singh @ Balia @ Balaram, Kalu Singh @ Kalu, under section 397 IPC are set aside. The conviction and sentence under section 412 IPC awarded to the accused appellants Ram Kumar are also set aside. All the accused appellants are convicted under section 411 IPC. Keeping in view the value of the property recovered from the accused which is no doubt meagre one I am of the view that it would meet the ends of justice if each of the accused appellant is sentenced to six months vigorous imprisonment and fine of Rs. 50/-, in default of payment of fine to undergo further rigorous imprisonment for 7 days. 8. Accused Ram Kumar is on bail. He is not before me. The trial court is directed to get the accused arrested and send trim to Jail for undergoing the remaining term of sentence awarded by this court. It is, however, made clear that the accused appellants shall be entitled to the benefit of section 428 Cr. P. C. and the period of detention undergone by them during investigation, inquiry and trial shall beset off against the term of imprisonment awarded to them by this Court. The two accused Balkar Singh@ Balia @ Balram and Kalu @ Kalu Singh have already undergone the term of sentences awarded to them, they shall be released forthwith if not required in any other caseAll the three appeals are accordingly.Order accordingly. *******