JUDGMENT 1. - The appellant Harbilas, along with three others was tried by the learned Additional Sessions Judge No. 2 Dholpur, under section 307 IPC and 27 Arms Act. While the three co-accused were acquitted by the learned Judge, he convicted the appellant under section 307 IPC and sentenced him to rigorous imprisonment for five years and a fine of Rs. 500/- or, in default, further rigorous imprisonment for six months. The appellant was acquitted of the charge of section 27 Arms Act. 2. The case of the prosecution case is that on March 6, 1976, morning Rajendra Singh PW 7 saw some dacoits in village Barsalai. He immediately went to the police station nearby and informed them about what he had seen a little earlier. The police party immediately set out in search of the dacoits. At about 10.30 a. m. there was an change of fire between the police party on one side and the dacoits on the other. It is alleged that in the course of encounter PW Chitar mal, Head Constable, Ramswaroop an informer of the police and Rajendra Singh aforementioned saw that Harbilas appellant was one of the dacoits who were firing shots at the police party. 3. The prosecution story goes that on August 29, 1976, appellant Harbilas along with his companions surrendered himself to the Chief Minister of Rajasthan in response of an appeal to the dacoits by Sarvodaya leader Shri Jai Prakash Narayan for such surrender. 4. During the trial PW Chhitar, Ramswaroop and Rajendra Singh were examined as witnesses on behalf of the prosecution. They fully supported the prosecution story as narrated above. Relying on their evidence the learned Judge found the appellant guilty to the charge under section 307 IPC and convicted and sentenced to five years' rigorous imprisonment and a fine of Rs. 500/-. He, however, acquitted of the charge of Arms Act. Harbilas has appealed through the Superintendent Jail where he is lodged and is serving out the sentence. Shri A. K. Gupta, Advocate as amicus curiae to urge the plea on behalf of the defence. Hearing both the sides and going through the evidence of Chhitarmal, Ramswaroop and Rajendra Singh, I am of opinion that it would not be safe to record conviction against the appellant on the basis of their testimony. PW Chittar Mal is a head constable. Hearing both the sides and going through the evidence of Chhitarmal, Ramswaroop and Rajendra Singh, I am of opinion that it would not be safe to record conviction against the appellant on the basis of their testimony. PW Chittar Mal is a head constable. He would have us believe that he was identifying the appellant in the court on the basis of his having seen him earlier in the course of encounter. He admitted that he did not know the appellant earlier. No test identification was held during the investigation. I am, therefore, not prepared to rely on Chhittarmal's statement regarding identification of the appellant in the court. PW Ram Swaroop is an informer of the police. He has testified that, as reward, the police have granted him a licence of a gun. He belongs to the same village to which the appellant belongs. There are serious discrepancies between his statement and that of PW Chhitarmal. It will be seen that according to Chhitarmal the dacoits were in the Nala and the police party was at some other place from where they fired at each other. On the other hand, according to the Ram Swaroop, the police party including himself were, in the Nala and the dacoits were at some other place. This discrepancy indicates that Ram Swaroop was not present at the time of the alleged encounter between the dacoits and the police. 5. Rajendra Singh also belongs to the village of the appellant, and as such he had known him earlier. He would have us believe that he went to the police party to give information to them about the presence of of the dacoits in the village after he had seen them there. It is significant to note that he did not mention the name of any of the dacoits including the appellant Harbilas while giving information to the police about their so-called presence in the village. The story that he had seen the decoits earlier is, therefore, difficult to believe. PW Kundan Singh stated that there was 400-500 yards distance separating the police party from the dacoits at the time of the encounter. If so, it could not be possible for PW Rajendra Singh, or for that matter, anybody else to see as to who and who were the members of the gang of dacoits. 6. PW Kundan Singh stated that there was 400-500 yards distance separating the police party from the dacoits at the time of the encounter. If so, it could not be possible for PW Rajendra Singh, or for that matter, anybody else to see as to who and who were the members of the gang of dacoits. 6. For all these reasons I allow this appeal, set aside the conviction and-sentence and instead acquit him. He shall be released forthwith if not required in any other case. *******