JUDGMENT J.M.L.Sinha, J. 1. These appeals arise out of the judgment and order dated 8th September, 1973 passed by First Civil and Sessions Judge, Allahabad, convicting all the appellants of the offence under Section 396 IPC and further convicting Sheo Kumar appellant of the offence under Section 412 IPC. For the offence under Section 396 IPC, all the appellants have been sentenced to life imprisonment and for the offence under Section 412 IPC, Sheo Kumar appellant has been sentenced to four years' further RI. 2. The prosecution case briefly stated was as follows: - "On 16th June, 1968 at about 7.30 P. M., a dacoity was committed at the house of Kamla Prasad (PW 1) in village Saraidina, police station Soraon, by the inmates of the house, a number of persons living near about assembled on either side of the house of Kamla Prasad. Ram Ji (PW 3), who is real brother of Kamla Prasad and was present in the flour mill situate in the west of Kamla Prasad's house, set fire to a heap of Arhar sticks that were lying there at a distance of about 10 paces to the west of the main door of the house of Kamla Prasad. That created brilliant light. It is also alleged that some of the witnesses who had assembled as well as the dacoits possessed torches which they flashed. Another source of light alleged is the light of lantern. It is said that it was burning at the main door of Kamla Prasad's house and Diya was, also burning at the temple situate to the north of Kamla Prasad's house. The dacoits beat Babu Lal in order to extract information regarding valuable inside the house. On getting an opportunity, Babu Lal started running away but he was shot at as a result of which he fell dead some distance away from the house. Having plundered the house for about 45 minutes, the dacoits made good their escape along with the looted property." A report about the occurrence was lodged by Kamla Prasad PW 1 at P. S. Soraon the same night at about 11. 30 p. m. distance of six miles intervened between the place of occurrence and the police station. A case under Section 396 IPC was registered on the basis of that report and usual investigation followed. 3. 30 p. m. distance of six miles intervened between the place of occurrence and the police station. A case under Section 396 IPC was registered on the basis of that report and usual investigation followed. 3. The post mortem examination on the dead body of Babu Lal was performed by Dr. K. C. Gupta on 18-6-1968, at about 11.15 a.m. According to the findings of the doctor, the deceased had 9 antemortem external injuries. Injury no. 9 was a result of gun shot. On internal examination, the doctor found that the 8th and 9th ribs on the left side were fractured. Left lung was lacerated under the external injury. The cause of death, in the opinion of the doctor, was shock and haemorrhage. 4. On the night between 24th and 25th September, 1968, Mahendra Singh S. I. PW 42 effected arrest of Tirsu and Indra Pal appellants. Evidence has been led to show that they were made Bupardah immediately after their arrest and they were kept in that condition till they were admitted in jail. Lal Bahadur, Sheo Kumar, Mahadeo and Bhola appellants were arrested by B. S. Roy, S. I. PW 48 and D. B. Mehta PW 45 on 26th October, 1968 at 8.30. P.M. from the shop of Mahavir Halvvai. ON at search being taken, Lal Bahadur appellant was found in possession of a D.B.B.L. gun No. 07075 besides some live cartridges. Sheo Kumar appellant was found in possession of a D.B.B.L, gun no. 8288 besides some cartridges. This is the same gun which had been looted from the house of Kamla Prasad. Mahadeo appellant was found in possession of a country made pistol besides some cartridges. It is alleged that at the time of his arrest, Mahadeo appellant threw away some bundle and from inside that bundle, the police recovered two guns Nos. HOKE 172/180, B.S. 123/185. Bhola appellant was found in possession of a S.B.B.L. gun No. P. 927 which also carried No. P.H.I.M. 0470 at another place. He was also found in possession of some live cartridges. All the articles recovered from the possession of the aforesaid appellants were sealed at the spot and memoes were prepared in evidence thereof. HOKE 172/180, B.S. 123/185. Bhola appellant was found in possession of a S.B.B.L. gun No. P. 927 which also carried No. P.H.I.M. 0470 at another place. He was also found in possession of some live cartridges. All the articles recovered from the possession of the aforesaid appellants were sealed at the spot and memoes were prepared in evidence thereof. Evidence has been led to show that Lal Bahadur, Sheo Kumar, Mahadeo and Bhola appellants were made Bupardah immediately after their arrest and remained so till they were admitted in Jail, and the property recovered, from them also remained in sealed condition. Chhutai and Bhai Lal (now dead) were arrested by B. S. Roy PW 48 on 27th July, 1968 at 6 a.m. in an encounter in village Shikra District Pratapgarh. Evidence has been led to show that they were made Bupardah immediately after their arrest and were kept in that condition till they were admitted in jail. 5. Tirsu and Indra Pal Singh appellants were put up for identification in Naini Central Jail Allahabad on 11th October, 1968, the identification proceedings having been conducted by Mahendra Singh PW 42, a Magistrate First Class. 6. Lal Bahadur Singh, Sheo Kumar, Mahadeo and Bhola appellants were put up for identification in Naini Central Jail, Allahabad on 18th November, 1968, the identification proceedings having been conducted by the same Magistrate viz. Shri Mahendra Singh PW 42. Chhutai and Bhai Lal were put up for identification in district jail Pratapgarh on 21st September, 1968, the identification proceedings having been conducted by Shri Sharda Prasad PW 44, Magistrate First Class. All the aforesaid appellants were correctly identified by a number of witnesses at the aforesaid identification proceedings. 7. The guns recovered from the possession of Lal Bahadur Singh, Mahadeo and Bhola appellants, together with empty cartridges recovered from the place of occurrence, were sent for examination to the ballastic expert for examination who reported that the empty cartridges, alleged to have been recovered from the place of occurrence, were fired from the same guns that were recovered from Lal Bahadur Singh, Mahadeo and Bhola appellants. More detailed reference to the report of the ballastic expert would be made later on. 8. After completion of the investigation, charge-sheets were submitted for the prosecution of the present appellants together with Senda, Billi, Rajaram, Bairagi, Bacha, Khunti and Putti. More detailed reference to the report of the ballastic expert would be made later on. 8. After completion of the investigation, charge-sheets were submitted for the prosecution of the present appellants together with Senda, Billi, Rajaram, Bairagi, Bacha, Khunti and Putti. The defence set up by the appellants, as also by the other persons sent up for trial, was total denial of the prosecution case. 9. The trial court on a consideration of the evidence on record held that the case was made out beyond reasonable doubt against the present appellants while it was not satisfactorily made out against Senda, Billi, Rajaram, Bairagi, Bacha, Khunti and Putti. In the result, the trial court convicted the appellants in the manner indicated earlier but acquitted the aforementioned persons. 10. Aggrieved against their conviction and sentence, the appellants have come up before this Court. So far Tirsu and Indra Pal Singh appellants are concerned, the case against them rests on a footing different from that of the other appellants. As already stated earlier, they were arrested by Har Nandan Singh PW 42 on the night between 24th/25th September, 1968. During identification proceedings, Tirsu appellant was correctly identified by RamJi, PW 3, Kanhaiya Lal PW 4 and Mithai Lal PW 5. Out of them, Kanhaiya Lal PW 4 did not identify Tirsu appellant in Court. Indra Pal Singh appellant was correctly identified during identification proceedings by Ram Ji PW 3, Mithai Lal PW 5 and Vishwanath PW 6. Out of them, Mithai Lal PW 5 did not identify Indra Pal Singh in court. It will thus appear that atleast two persons correctly indentified Tirsu and Indra Pal Singh appellants deposing that they had seen them amongst the dacoits at the time of the commission of the dacoity. It, however, transpires that on 24th September, 1968 in the day a telegram had been sent by Smt. Mahadevi, sister-in law of Tirsu appellant that he had been arrested by the police. Now, it cannot be accepted that even when Tirsu had not been arrested, it was anticipated that he would be arrested later on in the night and therefore, a telegram was seat for the purpose of peshbandi. The aforesaid telegram make the prosecution case against Tirsu and Indra Pal appellants extremely suspicious. Now, it cannot be accepted that even when Tirsu had not been arrested, it was anticipated that he would be arrested later on in the night and therefore, a telegram was seat for the purpose of peshbandi. The aforesaid telegram make the prosecution case against Tirsu and Indra Pal appellants extremely suspicious. The only inference that can arise out of the telegram sent by Smt. Mahadevi should be that Tirsu appelant had been arrested some time in the day and a false story was cooked up about his having been arrested during the night between 24th/25th September, 1968. This would not only adversely affect the case against Tirsu but also against Indra Pal about whom the prosecution case is that he was arrested together with Tirsu the same night. It may not be out of place to mention that the factum of arrest of Tirsu and Indra Pal Singh came up for consideration in Criminal Appeal No. 2594 connected with Criminal Appeal nos. 2595 and 2659 of 1973 decided by this court on 13th July, 1978 and this court held that the telegram sent by Smt. Mahadevi completely belied the prosecution case regarding the arrest of Tirsu and Indra Pal Singh appellants on the night of 24th and 25th September, 1968. 11. Since it appears that Tirsu and Indra Pal Singh appellants were arrested some time in the day of 24th September, 1968 and no explanation is forthcoming from the side of the prosecution as to what did the police do in respect of Tirsu and Indra Pal Singh appellant during the day on 24th September, 1968, the evidence of identification adduced by the prosecution to prove its case against these appellants cannot be relied upon for any moment. 12. Therefore, without dialating any further on the prosecution case as against Tirsu and Indra Pal Singh appellants, we find that the case was not made out beyond reasonable doubt against these two appellants and they are entitled to acquittal. This takes us to the case of Chkutai and Bhai Lal appellant who were arrested together on 27th of July, 1968 at 6 a.m. by B. S. Rai S. I. PW 48. Out of them Bhai Lal is dead and we have, therefore, to confine ourselves only to the case of Chhutai. This takes us to the case of Chkutai and Bhai Lal appellant who were arrested together on 27th of July, 1968 at 6 a.m. by B. S. Rai S. I. PW 48. Out of them Bhai Lal is dead and we have, therefore, to confine ourselves only to the case of Chhutai. He was put up for identification on 21st September, 11968 and during the said identification proceedings, he was correctly identified by Kamla Prasad PW 1, Hira Mani PW 2; Ram Ji PW 3 and Kanhaiya Lal PW 4. Out of them, Kanhaiya Lal PW 4 did not identify Chhutai in court. Consequently, his evidence can be excluded. The fact, however, remains that three witnesses consistently correctly identified Chhutai. 13. The question, however, is whether the aforesaid witnesses did have an (opportunity to see the faces of the dacoits at the time of the commission of the dacoity so as to enable them to identify him three months later at a regular identification parade. 14. As already mentioned earlier, the principal light in which the witnesses claimed to have seen the faces of the dacoits is that of fire that was lit at the main door of Kamla Prasad's House. The prosecuiont case that Ram Ji PW 3 came from the flour mill that was situated to the west of Kamla prasad's house and set fire to a heap of dried Arhar sticks lying there On. a careful consideration of the evidence on record, however, we find it extremely unsafe to accept that any fire could be lit by Ram Ji at the time of dacoity. It is the consistent case of the prosecution that some of the dacoits possessed firearms and they fired several rounds while at the door of Kamla Prasad's house during the process of dacoity. It has also been consistently stated by the prosecution witnesses that the dacoits did not keep standing merely on the main door but were moving to the right and left of the door in order to deter the village persons from coming nearer. They had also shot dead Baboo Lal who tried to run. According to the site plan the heap of Arhar sticks was lying at a distance of only 110 paces from the main door of Kamla Prasad's house. They had also shot dead Baboo Lal who tried to run. According to the site plan the heap of Arhar sticks was lying at a distance of only 110 paces from the main door of Kamla Prasad's house. It should, therefor, follow that when the dacoits moved to the left of the door, they would have been very close to the heap of Arhar sticks. In that back ground, it is not at all probable that Ram Ji PW 4 could muster courage to go up to the place where the Arhar sticks were lying as it clearly involved the risk of Ram Ji being shot at by the dacoits. 15. Learned counsel for the State urged that it is quite likely that Ram Ji came surreptitiously up to the heap of Arhar sticks to set fire to the same without being noticed by the dacoits. It was also urged by the learned counsel for the appellants that, may be the heap of Arhar sticks was quite high and Ramji took cover behind the heap itself while proceeding in that direction to set fire to it. Accepting that the heap of Arhar sticks would have been of some height, we cannot ignore the fact that, on the own showing of the prosecution witnesses, the dacoits possessed torches which they were flashing in each direction. Under the circumstances it does not appear probable that. Ramji could reach upto the heap off Arhar sticks without being noticed by the dacoits. A reference may be made in this connection to the statement made by Ramji PW 3 himself. He stated that the torches were being flashed by the dacoits in all directions before the fire had been lit by him and that while going towards the Arhar sticks to set fire he kept shouting and the dacoits had flashed their torches on him. The whole sentence reads as under :- "Mere Aag lagane ke pahtle goli nanhi chali thi. Mere aag lagane ke pahile tarchen jal rahi thi. Badmash charon taraf tarchon ki roshini phenk rahe the. Main shor karta hua Gaya. Mere taraf bhi jab mai aa raha tha to dakiton ne tarch ki roshni phenka tha. Dakuone mujhkoh aate nanhi dekha to kya datate. Main jab chillata hua aa raha tha to dakuone data nanhi tha. Maine dakuon ke pahchanane ke liye hi aag laga diya tha. Main shor karta hua Gaya. Mere taraf bhi jab mai aa raha tha to dakiton ne tarch ki roshni phenka tha. Dakuone mujhkoh aate nanhi dekha to kya datate. Main jab chillata hua aa raha tha to dakuone data nanhi tha. Maine dakuon ke pahchanane ke liye hi aag laga diya tha. Aag is liye bhi lagaya tha ki log dekhar doren." 16. In the context of the aforesaid statement made by Ramji PW 3, the argument raised by the learned counsel for the State that Ramji would have gone surreptitiously to the Arhar sticks to set fire to the same cannot be accepted. In the aforesaid circumstances, the prosecution case that any fire had been lit near the door of Kamla Prasad's house and that it was in the light of that fire the witnesses saw the faces of the dacoits is not acceptable to us. 17. Another light, which according to the prosecution case, was present at the door of Kamla Prasad's house is that of the lantern burning there. Assuming that a lantern was burning at the main door of Kamla Prasad's house, we cannot ignore the fact that, on the own showing of the prosecution, the dacoits were consistently flashing torches and firing shots, as a result of which the witnesses were not able to come closer. Consequently, it does not appear probable that in the dim light of the lantern, the witnesses could see the faces of the dacoits from the place where they were standing, so well as to be able to identify them later at the identification parade. 18. Yet another light, which was present according to the prosecution witnesses, was that of the torches flashed by the prosecution witnesses, and that of the torches flashed by the dacoits. As far the torches with the prosecution witnesses, they themselves stated that they some times came ahead from the place of their hiding and flashed their torches on the dacoits and when the dacoits fired they retreated and again took cover. The prosecution witnesses could therefore flash their torches only momentarily and in that momentary flashing of the torches, they could not notice the features of the dacoits well enough. As far the torches with the dacoits, they would not have been flashing the same in a manner so as to illumine their own faces. They would have been flashing their torches round about. As far the torches with the dacoits, they would not have been flashing the same in a manner so as to illumine their own faces. They would have been flashing their torches round about. We have, therefore, no doubt that the witnesses could not see the faces of the dacoits in that light. Once it is accepted that the witnesses did not have sufficient light at their disposal to see the faces of the dacoits, the evidence of identification relied upon by the prosecution cannot be accepted. 19. Learned counsel for the appellants, however, assailed the evidence of identification against Chhutai on other grounds as well. It was pointed by him that even though Chhutai was arrested on 27th of July, 1968 at 6a.m. from village Sakardha in District Pratapgarh, he was admitted in district jail on 29th July, 1968 at 12.30 p.m. Learned counsel urged that this inordinate delay in lodging Chhutai appellant in District Jail, Pratapgarh, points to the conclusion that the appellant had been shown to the identifying witnesses in between this period. We may, therefore, examine the prosecution evidence on this point as well. Vishnu Shanker Rai PW 48 stated that he arrested the appellant on 27th July, 1968, made him Bupardah and took him to Police Station Kunda where he was admitted at about 8.30 a.m. Liladhar constable PW 7 stated that Chhutai was first sent from police station Kunda along with two constables at 12.05 p.m. for being taken to district jail Pratapgarh but the two constable came back with the appellant as they could not get the bus. He further stated that Chhutai appellant was later sent from the Thana at 1.30 p.m. Sheo Mangal PW 8 and Mohammad Hanif PW 59 are the constables who escorted Chhutai appellant from P. S. Kunda to district jail, Pratapgarh. They stated that they reached Pratapgarh in the evening and took the appellant to police station, Kotwali, as the appellant could not be admitted in jail on that day. They further stated that since Chhutai and other appellant, namely, Bhai Lal had injuries on their persons the police officer at P.S. Kotwali refused to admit them and directed that they be taken to the hospital. They further stated that since Chhutai and other appellant, namely, Bhai Lal had injuries on their persons the police officer at P.S. Kotwali refused to admit them and directed that they be taken to the hospital. The two witnesses merely stated that they took Chhutai and Bhai Lal appellant to the District Hospital Pratapgarh for medical examination where they remained for the night and in the morning they were handed over to Abdul Wahid PW 55 who had been deputed from the police lines to take them in his charge and carry them to district Jail,, Pratapgarh. Dr. B. R. Singh PW 56 deposed that he was Medical Officer in district hospital, Pratapgarh on the date when the appellants Chhutai and Bhai Lal were brought for their medical examination. Abdul Wahid PW 55 said that he took the appellants in his charge in the morning of 29th of July, 1968 and carried them to District Jail. Constable Sheo Mangal and Mohammad Hanif deposed that so long the appellants remained in their custody they were kept Bupardah. 20. While it should be accepted that there was some delay in lodging the appellants in district Jail Pratapgarh, in view of the aforesaid evidence existing on record, it cannot be successfully urged that this delay occurred because the police wanted to show Chhutai and Bhai Lal appellants to the identifying witnesses before they were admitted in jail. In view, however, of our conclusion on the point of light and the consequent conclusion that the witnesses could not see the faces of the dacoits, we find that the case against Chhutai appellant was not made out beyond reasonable doubt and he is entitled to acquittal. 21. The next set of the appellants consists of Lal Bahadur, Sheo Kumar, Mahadeo and Bhola. Lal Bahadur appellant was correctly identified by Kamla Prasad PW 1, Hira Mani PW 2, Ramji Lal PW 3, Kanhaiya Lal PW 4 Mithai Lal PW 5, and Vishwanath PW 6. Sheo Kumar was correctly identified by all the aforesaid witnesses except Kanhaiya Lal PW 4, Mahadeo appellant, was correctly identified by all the aforementioned witnesses except Mithai Lal PW 5 and Bhola appellant was correctly identified by all the aforesaid witnesses except Kanhaiya Lal PW 4 and Vishwanath PW 6. The performance of all the aforesaid witnesses at the identification parade was satisfactory. The performance of all the aforesaid witnesses at the identification parade was satisfactory. Out of the aforesaid witnesses Hira Mani, Kanhaiya Lal and Mithi Lal were standing in the Khandhar situated to the east of Kamla Prasad's house. Ramji Lal PW 3 was standing on the north western corner of the house of Kamla Prasad's house while Kamla Prasad was present at the house. We have already held earlier that the witnesses standing on either side of the house did not have sufficient light at their disposal in which they could see the feature of the dacoits to be able to identify the dacoits later on at the identification parade. For the same reason, the evidence of identification furnished by Hira Mani PW 2, Ramji Lal PW 3, Kanhaiya Lal PW 4, Mithai Lal PW 5, and Vishwanath PW 6 cannot be accepted. Then there remains the solitary evidence of Kamla Prasad PW 1. The learned counsel for the appellants pointed out that his evidence is of discrepant nature as some times he said that he was inside the house after the dacoits came up and some times he said that he continued to remain outside the house. Learned counsel points out that it is not shown that there was any light inside the house and, consequently, Kamla Prasad could not see the faces of the dacoits if he was inside the house. In our opinion, Kamla Prasad did have an opportunity to see the faces of the dacoits. As already stated earlier, according to the prosecution, a lantern was burning at the front door of Kamla Prasad's house. There is nothing improbable in a lantern being present at the door at 7 p. m. when the dacoity is said to have taken place. Even if Kamla Prasad was inside the house some light must have been present therein and the mere fact that there is no mention in the first information report about any light inside the house cannot lead to the conclusion that the house was dark at 7 p. m. when the dacoity took place. Kamla Prasad could also therefore, see the faces of the dacoits if he was inside the house when the dacoits were ransacking the house. It is, however, well settled that the solitary evidence of identification can never form basis of conviction. Kamla Prasad could also therefore, see the faces of the dacoits if he was inside the house when the dacoits were ransacking the house. It is, however, well settled that the solitary evidence of identification can never form basis of conviction. Consequently, much value cannot be attached to the identification of the appellants by Kamla Prasad. 22. As against Lai Bahadur, Mahadeo and Bhola appellants, the prosecution has also led circumstantial evidence to connect them with the commission of dacoity. It is said that at the time of their arrest on 26th October, 1968, Lal Bahadur appellant was found in possession of gun no. 07075, Mahadeo appellant was found in possession of two guns-HOKE 172/180 and 123/ 1185 and Bhola appellant was found in possession of a gun no. 4708. In order to prove the factum of recovery of the aforesaid articles, the prosecution examined B. S. Rai PW 48, Dharma Vir Mehta PW 45, Mahabir PW 40 and Ganga Pd. PW 41. All the aforesaid witnesses consistently deposed about the aforesaid weapons having been recovered from the possession of Lal Bahadur, Mahadeo and Bhola appellants and of their being sealed at the spot. The weapons recovered from the possession of Lal Bahadur, Mahadeo and Bhola appellants, along with six empty cartridges recovered from the place of occurrence, were sent to the ballastic expert. Shri Rameshwar Prasad Rastogi PW 52, Ballastic Expert, carried the necessary experiments. He deposed that marks on empty cartridges (marked by him EC 5) tallied with the marks on the test cartridges fired by him from gun no. 123/185 recovered from Mahadeo appellant. He further deposed that marks found on the empty cartridges (marked by him as EC 6) tallied with the marks on the" test cartridges fired by him from gun no. 4708 said to have been recovered from the possession of Bhola appellant. It was also deposed by him that the marks found by him on empty cartridges (marked EC 7 and 8) tallied with marks found on test cartridges fired from gun no. 07075 alleged to have been recovered from Lal Bahadur appellant. 23. The evidence of expert thus does prove that the guns recovered from the possession of Lal Bahadur, Mahadeo and Bhola were used during the commission of dacoity at the house of Kamla Prasad. 07075 alleged to have been recovered from Lal Bahadur appellant. 23. The evidence of expert thus does prove that the guns recovered from the possession of Lal Bahadur, Mahadeo and Bhola were used during the commission of dacoity at the house of Kamla Prasad. Learned counsel for the appellants, however, urged that the evidence of the ballastic expert should not be accepted for the following reasons :- (i) that the empty cartridges alleged to have been recovered from the place of occurrence were not sent to the malkhana till 22nd November, 1968, and (ii) that the fire arms recovered from the possession of Tirsu and Indra Pal Singh were not sent to the ballastic expert. 24. Elaborating on the first part of his argument, learned counsel urged that since the sealed bundle containing the cartridges was present at the Thana when the aforesaid weapons were recovered from the possession of Lal Bahadur, Mahadeo and Bhola appellants, it was so easy for the sub-inspector to have fired a few shots from those weapons and then substitute the cartridges alleged to have been recovered from the place of occurrence with the cartridges fired by the police from the weapons recovered from the possession of the aforesaid appellants. Learned counsel pointed out that this suspicion should not be discarded as wholly unfounded in view of the fact that the investigation by the police as against the present appellants has been found in two earlier cases to be tainted. Learned counsel, added that out of those two cases, one of the case was investigated by the same sub-inspector who investigated the present case. Learned counsel for the appellants has filed the certified copies of the judgments of the cases in which investigation was found to be suspicious; one judgment is of S. T. No. 11 of 1971 decided by Shri B. N. Rai, Additional Sessions Judge, Allahabad on 8-9- 1973 and the other is of this court in Cr. A. No. 2921 of 1973 connected with Cr. A. No. 2936 of 1973 Tirsu v. State. Tkis court observed "I find that in S.T. No. 11 of 1971 these four appellants were acquitted of the charge under Section 399/402 I.P.C. with a finding there was no sufficient light and there was no opportunity for this witnesses to see the faces of the dacoits. A. No. 2936 of 1973 Tirsu v. State. Tkis court observed "I find that in S.T. No. 11 of 1971 these four appellants were acquitted of the charge under Section 399/402 I.P.C. with a finding there was no sufficient light and there was no opportunity for this witnesses to see the faces of the dacoits. In S. T. No. 11 of 1971 also, the arrest of these four appellants was of the same date, viz. 26-10-68. There is then the judgment of this Court in Criminal Appeal No. 3265 of 1973 and in this case also it has been held by this Court that the witnesses were not in a position to see the faces of the dacoits, and therefore, these appellants were acquitted. In this appeal, the arrest was of the same date. Thus briefly speaking twice it has been decided that these four appellants were identified by the witnesses in the test identification although there is finding that the witnesses had no opportunity of seeing their faces at the time of dacoity. It has been held in two cases that the witnesses identified these appellants although they had no opportunity of seeing their faces, it would automatically follow that their identification was due to some external aid. If in two cases it has been found that the identification of these appellants was due to some external aid, the whole investigation becomes doubtful." 25. In view of the judgments filed by the learned counsel for the appellants, it really becomes necessary that the prosecution case against the appellants is examined with caution. There is no explanation on record as to why the bundle containing the empty cartridges recovered from the place of occurrence was not sent to the Malkhana promptly thereafter. We do not, however, think that mere delay in the sealed bundle being sent to the Malkhana can appropriately lead to an inference that the sealed bundle containing the empty cartridges was substituted with fresh cartridges fired by the police from the weapons recovered from the aforesaid appellants. 26. Elaborating his second point, learned counsel urged that the fire arms were also recovered from Tirsu and Indrapal Singh appellants but those fire arms were not sent to the ballastic expert. 26. Elaborating his second point, learned counsel urged that the fire arms were also recovered from Tirsu and Indrapal Singh appellants but those fire arms were not sent to the ballastic expert. Learned counsel stressed that the police had no means to anticipate that the fire arms recovered from Tirsu and Indrapal Singh appellants were not used in the commission of the dacoity while the fire arms recovered from the possession of Lal Bahadur, Mahadeo and Bhola appellants were used. It was urged by the learned counsel that the only explanation that can be conceived for the police not sending to the ballistic expert the fire arms recovered from Tirsu and Indrapal Singh appellants ;and sending the fire arms recovered from Lal Bahadur, Mahadeo and Bhola appellants, can be that since they had themselves some shots with the guns recovered from Lal Bahadur, Mahadeo and Bhola appellants and had substituted the empty cartridges recovered from the place of occurrence with those cartridges they were sure the report of the ballastic expert could connect those weapons with the dacoity, but since they could not do the same with the weapons recovered from Tirsu and Indrapal Singh, they knew that it will be futile to send them to the expert. Learned counsel for the State could not offer any explanation as to why the police only sent to the ballastic expert the weapons recovered from Lal Bahadur, Mahadeo and Bhola appellants while the weapons recovered from the possession of Tirsu and Indrapal Singh appellants were not sent to the ballastic expert. The fact that the police only sent the weapons recovered from Lal Bahadur, Mahadeo and Bhola appellants to the ballastic expert and did not send the weapons recovered from Tirsu and Indrapal Singh appellants, nor offered any explanation for the same does raise some suspicion against the bonafides of the police. We would however refrain from drawing a conclusion on that basis that the police fired any shots from the weapons recovered from Lal Bahadur, Mahadeo and Bhola appellants ; that they subsituted the cartridges recovered from the place of occurrence with the cartridges so fired, and it was for this reason that they sent only the weapons recovered from Lal Bahadur, Mahadeo and Bhola appellants to the ballastic expert and did not send the weapons recovered from Tirsu and Indrapal Singh appellants. 27. 27. We accordingly hold that the weapons recovered from the possession of Lal Bahadur, Mahadeo and Bhola appellants were used during the commission of dacoity. 28. We cannot, however, ignore the fact that a period of more than 4 months expired between the commission of dacoity and the recovery of the aforesaid weapons from Lal Bahadur, Mahadeo and Bhola appellants. In that background, the possibility of weapons having changed hands in between cannot be ruled out. In our opinion, therefore, it would not be safe to hold on the basis of the report of the ballastic expert and recovery effected from Lal Bahadur, Mahadeo and Bhola appellants that they had participated in the commission of dacoity. Since, it is not shown that the weapons recovered from the possession of Lal Bahadur, Mahadeo and Bhola appellants were stolen property in the commission of the present dacoity nor any charge under Section 411 IPC is framed in respect of the aforesaid fire arms, the appellants can also not be held guilty in this case on that charge. They were accordingly entitled to acquittal. 29. It is, however, made clear that this judgment will not stand in the way of the police launching a prosecution against the present appellants under the relevant law against Lal Bahadur, Mahadeo and Bhola appellants for having been found in possession of the alleged fire arms, if it is found necessary. 30. As far Sheo Kumar appellant, the prosecution has led evidence to show that DBBL Gun No. 8288 was recovered from his possession at the time of his arrest on 26th October, 1968. It is the same gun that was stolen from the house of Kamla Prasad. In view of the consistent evidence of as many as four witnesses examined on the side of the prosecution, we accept the factum of recovery. The trial court on the basis of the recovery of the gun has convicted Sheo Kumar appellant of the offence under Section 412 IPC. One of the necessary ingredients under Sec. 412 IPC, however, is that the accused must know that the possession of property in question was transferred by commission of dacoity. There is no evidence on record to show that Sheo Kumar appellant knew or had reason to know that the possession of the gun recovered from him had been transferred by commission of dacoity. There is no evidence on record to show that Sheo Kumar appellant knew or had reason to know that the possession of the gun recovered from him had been transferred by commission of dacoity. Sheo Kumar appellant could, therefore, be held guilty of the offence under Section 411 IPC only, on the basis of the recovery of the gun from his possession, and not under Section 412 IPC. In view of the foregoing discussion, we propose to acquit Sheo Kumar appellant under Section 396 IPC and alter his conviction under Section 412 IPC to Section 411 IPC. In the result, Criminal Appeal No. 2892 of 1973 filed by Tirsu appellant is allowed, the conviction and sentence recorded against him are set aside. Criminal Appeal No. 2952 of 1973 as far as Bhai Lal appellant is concerned has abated and in so far as it concerns Chhutai, it is allowed and the conviction and sentence recorded against him are set aside. Tirsu, Chhutai and Indrpal Singh appellants are on bail. They need not surrender. Their bail bonds are discharged. Appellant Mahadeo is in jail. He shall be set at liberty forthwith unless wanted in any other case. 31. Criminal Appeal No. 2935 of 1973 in so far as it related to Bhola and Lal Bahadur appellants is allowed in toto. The conviction and sentence passed against them are set aside. They are on bail. They need not surrender. Their bail bonds are discharged. 32. Criminal Appeal No. 2935 of 1973 so far as it related to Sheo Kumar appellant is allowed to this extent only that while his conviction and sentence recorded under Section 396 IPC are set aside, his conviction under Section 412 IPC is altered to under Section 411 IPC and the sentence of four years' RI awarded to him under Section 412 IPC is substituted with a sentence of two years' RI to be undergone by him for the offence under Section 411 IPC. Sheo Kumar appellant is on bail. He shall surrender forthwith to serve out the sentience as modified by this court.