Short Note : 1. Second Additional Sessions Judge, Gwalior tried four accused including the appellant in Sessions Trial No. 46 of 1975 dated 1.11.1975. Out of the four accused, three were acquitted while the appellant was convicted and sentenced to rigorous imprisonment for five years under Section 395, Indian Penal Code. The present appeal is directed against the above. 2. Identification of the appellant and the other co-accused was conducted by Ajit Kapoor Magistrate First Class (PW-7) as per identification memoranda Ex.P-10A and Ex.P-10-B on 18.1.1975. It appears that in this identification proceeding all the four accused including the present appellant were identified. However, the learned Additional Sessions Judge in Para 35 of the judgment held that all these four accused including the appellant were detained in the police station for four or five days after the incident and they were seen by PW-6 Champa and PW-5 Lallu. It was further pointed out that from the statement of Feransingh (PW-9) and Natha (PW-10), it was, borne out that all these four accused were shown to the ladies in village Bajma before the test identification. In view of this evidence the learned Additional Sessions Judge acquitted the three accused. However, curiously enough, he held in para 26 of the judgment that appellant Ratna had been identified in the test-identification parade by the same witnesses. Thus, it is but obvious that the learned Additional Sessions Judge has acquitted the three co-accused holding that they had not been identified in the test parade, but ignoring those grounds, held that the appellant Ratna had been identified. The same reasons and grounds were applicable to the present appellant also and therefore, in the fitness of the things, the learned Additional Sessions Judge ought to have held that even this appellant Ratna was not legally identified in the test parade. 3. In the result, the appeal is partly allowed. The conviction under Section 395, Indian Penal Code is altered to Section 411, Indian Penal Code and the appellant is sentenced to rigorous imprisonment for one year thereunder. The order as to disposal of the property is maintained.