JUDGMENT 1. - The two appeals, listed above, arise out of the same trial and judgment and are, therefore, being disposed of by a common judgment.The appellants, Budhi, Shriya and Makhan Singh, were tried by the learned Additional Sessions Judge, Bharatpur under Sections 395 and 397, IPC. They were convicted and sentenced to rigorous imprisonment for three years and a fine of Rs. 200/-, or in default, further rigorous imprisonment for three months each, under section 395, IPC. They were also convicted and sentenced under Section 397 IPC to rigorous imprisonment for seven years each. Thus sentences were ordered to run concurrently. 2. The basis of the prosecution in this case is the First Information Report lodged by Bhag Chand, PW/1, with the Police Station, Nagwai on April 24, 1976. The report is brief and may, therefore, be reproduced here in verbatum. It reads as follows:- On the night between April 23 and 24, 1976, at about 11 p. m, a number of bandits broke open the lock of our house situated in village Pili and thus effected their entry into it. My father (Tula Ram) who was sleeping in front of his room heard the noise and informed me about it. My father and I went to call my brother Om Prakash, who was present at that time at our threshing field. Om Prakash my father and I returned from the threshing field and went up on the roof from where Om Prakash fired gunshots at the bandits in defence of our property. The bandits returned the fire and went away from our house. While leaving the house they were flashing torch lights and thus we could see them. The bandits were 8-10 in number. That property, if any, belonging to my brother Ramesh has been stolen, is not known to me. We would check up and inform the police about it later, The bandits also abducted Santosh Kumar son of my brother Ramesh and took him away with them for some distance. They released Santosh Kumar from their custody at some distance from the village. 3. The Sub-Inspector Man Singh, who had received this information at 1.30 a. m. that night, arrived at the scene of occurrence at about 2.30 a. m. the same night. He prepared the site-plan Ex. P/2. They released Santosh Kumar from their custody at some distance from the village. 3. The Sub-Inspector Man Singh, who had received this information at 1.30 a. m. that night, arrived at the scene of occurrence at about 2.30 a. m. the same night. He prepared the site-plan Ex. P/2. He took into possession broken lock, empty cartridges and back portion of a torch and prepared the necessary memos. 4. The list of the stolen property was supplied to the police by Bhag Chand PW/1, on April 26, 1976, 5. It appears that the investigating agency was not able to find any clue to establish the identity of the culprits for a long time. It so happened that the three appellants were being held in police custody in another case (No. 5 of 1976) of the same Police Station. Sub-Inspector Man Singh arranged to send them to the judicial lock-up on , June 5, 1976, on the representation that they were required to be put up for test identification in the present case. Test identification parade was held on June 7, 1976. Bhag Chand, Om Prakash and Santosh Kumar, aforementioned are alleged to have correctly identified all the three appellants in the context of the commission of dacoity in their house. The appellants were formerly arrested by Man Singh, Sub-Inspector, in the present case on June 30, 1976. 6. The prosecution story further goes that while in the custody of the police Shriya made a disclosure statement Ex. P/17, before Head Constable Niranjan Lal, PW/13, on June 14, 1976 at 6.30 a, m. to the effect that he had bidden in his residential house the stolen property which fell to his share, and that he could get the same recovered from there. It is alleged that in consequence of the said information, Head Constable, Niranjan Lal recovered the stolen Jhumki from the house of Shriya in the presence of Jeewan Lal and Sarmanlal on June 15, 1976. Similarly, appellant Makhan Singh is alleged to have disclosed to the Head Constable, Niranjan Lal, on June 15, 1976, vide memo Ex. P/20, that he had concealed the stolen property fallen to his share, and that he can get the same recovered. It is alleged that three days later i. e. June 18, 1976. Makhan Singh produced from his residential house the stolen property comprising four lachachas, which were taken into possession memo Ex. P/20, that he had concealed the stolen property fallen to his share, and that he can get the same recovered. It is alleged that three days later i. e. June 18, 1976. Makhan Singh produced from his residential house the stolen property comprising four lachachas, which were taken into possession memo Ex. P/12 in the presence of PW/9 Bhadai Ram and PW/11 Ramswaroop. Similarly the third appellant, namely, Budhi is alleged to have made a disclosure statement, Ex. P/19, on June 17, 1976, resulting in the recovery of the stolen kondhani from his house in the presence of Karam Singh PW/5 and Jag Ram PW/6, the same day. During the trial, the prosecution examined, among others, Bhag Chand, Om Prakash, Santosh Kumar, Tula Ram, Jeewan Lal, Sarwan Lal, Jag Ram, Karan Singh, Ram Swaroop, Sub-Inspector Man Singh and Head Constable Niranjan Lal as witnesses in support of its case. 7. In their statements under Section 313, Cr. P. C. the appellants denied the allegations against them and protested their innocence. 8. One of the appellants, namely Makhan Singh appeared as defence witness on his own behalf. The other witnesses examined in defence are DW/2 Raghuveer Singh, DW/3 Hareti and DW/4 Bhabhutiya. 9. Relying on the identification in the Court of the three appellants by PWs Bhag Chand, Om Prakash and Santosh Kumar as corroborated by similar identification of the appellants in the test identification, and also on the alleged recovery of the stolen property, at the instance of the appellants, the learned trial Judge came to the conclusion that the charges framed against the appellants are proved. He has, therefore, convicted and sentenced them as mentioned at the beginning of this judgment. 10. The learned counsel for the appellants has assailed the order of conviction and sentence against the appellants and submitted that none of the two pieces of evidence relied upon by the learned trial Judge holds water. I am inclined to agree. 11. It will be seen from the First Information Report that the complainant Bhag Chand, his brother Om Prakash and his nephew Santosh Kumar could not possibly see any of the culprits at the time when they were present in their house and committing the dacoity. It was a dark night. I am inclined to agree. 11. It will be seen from the First Information Report that the complainant Bhag Chand, his brother Om Prakash and his nephew Santosh Kumar could not possibly see any of the culprits at the time when they were present in their house and committing the dacoity. It was a dark night. The First Information Report clearly indicates that there was no light of any kind burning in the house of the complainant party at the time of the commission of the crime. That is why the complainant took care to mention specifically in the First Information Report that the dacoits had flashed torch light while they were leaving their house, thus enabling the members of the complainant party, on the roof of a house opposite, to see the dacoits. I may mention here that an attempt was made by Bhag Chand and Om Prakash in the trial to improve upon the story as given in the FIR, inasmuch as they told the learned trial Judge that a lantern was burning in their house at the time the dacoits broke open into it. Had there been any such lantern in the house, as was sought to made out, in the trial, the complainant would not have failed to mention this fact in the first information report. Moreover, it does not stand to reason that the members of the household would retire to their beds outside the house late in the night leaving a lantern still burning in a locked house. 12. For all these reasons, I am fully convinced that none of the members of the household of the complainant had been able to see the face of any of the culprits at the time of the occurrence so as to be able to identify them subsequently the test identification. PW 4 Tula Ram lather of the complainant, Bhag Chand and Om Prakash who is alleged to have seen the bandits in the house before he went to inform his sons about it, was not called upon to identify the culprits at the test identification parade. He excuses himself by stating that his eye-sight has since gone weak. 13. Santosh Kumar PW has made material improvements in his statement in the trial as compared to his statement during the investigation. He is not trustworthy. 14. He excuses himself by stating that his eye-sight has since gone weak. 13. Santosh Kumar PW has made material improvements in his statement in the trial as compared to his statement during the investigation. He is not trustworthy. 14. Sub-Inspector Man Singh, who arrested the present appellants in a different case has not cared to explain as to when he arrested them in that case and why, all of a sudden, on June 5, 1976, he decided to obtain orders to send the appellants to the judicial lock-up for test identification in the present case. He kept ominously silent as to whether he kept the appellants baparda during the period they remained in his custody in the other case. The so-called identification of the appellants by the witnesses at the test identification does not, therefore, inspire any confidence. As already indicated, the witnesses could not have possibly seen the culprits on the night of the occurrence. The identification of the appellants by them in the trial, therefore, carries no weight. 15. Turning to the evidence regarding the recovery of the stolen property in consequence of the alleged disclosures made by the appellants, I may right away point out that PWs Jeevan Lal and Sarwan Lal, the motbir witnesses of the alleged recovery of Jhumki from Shriya and PWs Mada Ram and Ram Swaroop, the motbir witnesses of similar recovery of Lachchas from the house of Makhan Singh, have not supported the prosecution story in that behalf. I am, therefore, not prepared to rely on the interested testimony of Head Constable Niranjan Lal to convict them on the basis of the so-called recovery of stolen property from them. 16. PWs Jagram and Karan Siagn, the motbir witnesses of the recovery of the stolen property Kondhani from the possession of the appellant Budhi, have, of course, supported the prosecution story in. that behalf. They are, however, not the type of witnesses on which I may place implicit reliance for recording conviction in such a serious case. It will be seen that both of them are residents of Pili. The recovery is alleged to have been effected in village Tajpur at a distance of nearly 8-9 miles from village Pili. that behalf. They are, however, not the type of witnesses on which I may place implicit reliance for recording conviction in such a serious case. It will be seen that both of them are residents of Pili. The recovery is alleged to have been effected in village Tajpur at a distance of nearly 8-9 miles from village Pili. Head Constable Niranjan Lal and these so-called motbir witnesses would have us believe that it was by coincidence that these witnesses met Head Constable Niranjan Lal while on his way to village Tajpur, in a jeep with accused Budhi in his custody for the purpose of effecting recovery from there, it is pertinent to note that Karan Singh is the self-same witness who was associated with this investigation from the very beginning, inasmuch as he had signed a number of memos at the instance of Sub-Inspector Man Singh in the night of occurrence. He admitted that he has been making frequent visits to the police station. It is ununderstandable as to why the Head Constable, Niranjan Singh, made it a point to pick up this witness for being present at the time of crucial recoveries. 17. Thus, there is no satisfactory evidence on record to connect the appellants with the charges framed against them, or with any other crime. I would accordingly allow these appeals, set aside the conviction and sentences passed against the appellant and, instead acquit them. They shall be set at liberty forthwith if not required to be detained in any other case.Appeals allowed. *******