JUDGMENT 1. - This judgment deals with two criminal appeals listed above. These appeals have arisen in the following circumstances. 2. A dacoity was committed by a number of bandits in village Khanpur Police Station Bhusawar on the night between November 12 and 13, 1969. It is alleged that the dacoits deprived a number of persons including women of their ornaments and that they used fire arms in the commission of dacoity. One Rudiya who suffered a gun shot wound died subsequent; in the hospital. The report of the occurrence was lodged with the police by PW Shivram Singh On November 13, 1969. 3. After investigation, police sent up Kirori, Purshottam and Dhakii for trial under section 396 IPC in the year 1970. It is alleged that the present appellants, namely, Raghunath and Laxman, who were also members of the gang which committed this dacoity, were absconding at that time. They were re-arrested on May 14, 197L The trial remained pending for a long time. 4. By judgment dated November 26, 1977, the learned Additional Sessions Judge, Bharatpur, found both the appellants guilty under section 396 I.P.C. He convicted and sentenced them to rigorous imprisonment for 8 years and a fine of Rs. 1000/- or in default to further rigorous imprisonment for one month each. Both Laxman and Raghunath have brought separate petitions of appeal against their convictions and sentences as aforementioned. 5. After hearing learned counsel for the appellants and learned public prosecutor and on going through the record I find that the learned trial Judge has convicted both the appellants on the basis of their identification by some of the witnesses in the court as also during the course of test identifications earlier. It will be seen that PWs. Gangasahai, Kanwar Sen, Mohar Kaur, Dulari, Sampat and Lachhu had identified the appellants correctly in test identification held by a Magistrate on January 12, 1970. PWs. Prem and Lachhi were not able to identify appellant Laxman in the court. 6. After carefully screening the relevant documents on the record I find that it would not be safe to rely on the identification of the appellants by some of the witnesses in the court or before the learned Magistrate earlier during the test identifications. It will be seen from the arrest memos Ex. 6. After carefully screening the relevant documents on the record I find that it would not be safe to rely on the identification of the appellants by some of the witnesses in the court or before the learned Magistrate earlier during the test identifications. It will be seen from the arrest memos Ex. P 25 and P 26, that both the appellants Laxman and Raghunath were arrested by PW 18 Budhram on January 1, 1970. The learned trial Judge has relied on the evidence of PW 13 Lekhraj, a head constable to hold that both the appellants were immediately sent to the judicial lockup after their arrest on January 1, 1970, itself; and that therefore there was no possibility of any of the witnesses la the case to see them thereafter till the holding of the test identification on January 12, 1970. It will be seen from the identification memo Ex. P 20 that the appellants remained in police custody till January 3, 1970 when they were sent to judicial lock-up. The documents Ex. P 21 A and P27 would also confirm that the appellants were in police custody from January 1 to January 3, 1970 Ex. P 27 purports to be a disclosure statement alleged to have been made by the appellant Raghunath in the custody of the police on January 2, 1970. It is alleged that as a consequence of that disclosure PW Narottam produced before the police a number of stolen articles on January 3, 1970. 7. It is thus abundantly clear on the evidence produced by the prosecution itself that the appellant remained in police custody from January 1 to January 3, 1970. The learned trial Judge was, therefore, not justified in holding that they were sent to the judicial lock up immediately after their arrest on January 1, 1970 and that therefore there was no possibility of any of the witnesses seeing them in police custody. 8. Another circumstance which has been brought to light by the defence from the cross-examination of some of the prosecution witnesses themselves is that the appellant Laxman who is the brother of Kirori, and that Kirori's daughter is married in village Khanpur One of the prosecution witnesses namely, Smt. Lachhi admitted that the appellant had been visiting village Khanpur quite frequently and that therefore the villagers know him quite well. If that is so, there was no point in putting up appellant Laxman for identification by the witnesses belonging to village Khanpur. If Laxman was one of the members of the gang of bandits who committed dacoity with murder in village Khanpur between November 12 and 13 1969, his name would have been mentioned in the F. I. R. which was registered on November 13, 1969. 9. For all the reasons I find it difficult to hold that Laxman and Raghunath were members of the gang of dacoits who committed this crime on the night of November 12 and 13, 1969. Giving them the benefit of doubt, I allow their appeals, set aside the judgment and order of conviction passed against them and instead acquit them. They shall be released forthwith if not required to be detained in any other case. *******