JUDGMENT 1. - The above named four accused appellants have been convicted u/s 395/397, IPC by the learned Add. Sessions Judge, Dholpur, and each of them has been sentenced to suffer 7 years R. I. and a fine of Rs. 500/-, or in default to six months R. I. 2. The accused appellants have filed three appeals, and as they arises out of the same judgment of the learned Addl. Sessions Judge, they can be conveniently disposed of by a common judgment. 3. Stated briefly, the case of the prosecution is that in the night intervening 13/14th May, 1977, a dacoity is alleged to have taken place in the house of Pradip Kumar (PW 2) situated in village Godupura, Tehsil Rajakhera, District Bharatpur. It is alleged that 10 miscreants came to the house of Pradip Kumar (PW 2) and 5 out of them remained standing out side the house and only 5 entered the house. They, were armed with guns, and Pradip Kumar and others were all sleeping in the Chowk. The dacoits asked Pradip Kumar to hand over the bunch of keys of the Kotha where the ornaments etc. had been kept. He banded over the bunch of keys and there after it is alleged that the dacoits kindled kerosene lamp, which was lying in the 'Ala' with the help of a match stick, and with the help of that lamp opened the lock of the Kotha and took away Rs. 4,000/- cash from one box. Thereafter it is alleged that the dacoits asked the family members, who had also awakened by them and were in the chowk, to hand over their ornaments to them. The ornaments of Shashi (PWI), of Kanta (PW 3) and one Kinno (not produced) were taken by the dacoits. The case of The prosecution is that when the end of a barrel of a gun was placed at the chest of Pradip Kumar (PW ), he was awakened and he identified the two accused appellants, Amarsingh and Harisingh, and one Jhapa, who were known to him from before. The villagers also arrived and it is said that they also chased the dacoits, but the dacoits in order to scare them away fired twice in the air. 4. A report t in writing (Ex. The villagers also arrived and it is said that they also chased the dacoits, but the dacoits in order to scare them away fired twice in the air. 4. A report t in writing (Ex. P. 4) of the incident was lodged by Pradip Kumar (PW 2) in P. S. Rajakhera on 14-5-77 at 2 P M. A case was registered under S. 458/332, IPC, but lateron it was converted into S. 395/397, IPC. 5. Accused-appellants Hari Singh and Amarsingh, who were guards at the State Bank of Bikaner and Jaipur, Raja Khera Branch, at the relevant time, were arrested on 14-5-7/. On their information under S. 27 of the Evidence Act, one Kundal and a golden chain were recovered from Harisingh and Amarsingh respectively. It is alleged that they are the ornaments belonging to Shashi (PWI) and bad been taken away by the dacoits. 6. Five guns belonging to the Bank and meant for the Bank Guards were also recovered from the possession of accused Amarsingh and Harisingh on 14-5-77 and two empty cartridges were also recovered. They were sent to the Ballastic Expert and his opinion is that they were fired from 0 303 guns recovered from the accused persons and sent to him. 7. Accused Kedar and Megha were put for identification on 23-5-77, the day on which they were confined to Jail and Pradip Kumar and Kanta identified accused Kedar, Pradip Kumar also identified accused Megha and accused Megha was also identified by Shashi (PW 1). 8. The pair of Kundal and golden chain were put for identification on 13-6-77 and they were identified by Shashi (PW 1), Pradip Kumar (PW 2) and Devchand (not examined). 9. The accused persons were tried by the learned Addl. Sessions Judge u/s 395/397, IPC and the plea of the accused appellants Hari Singh and Amarsingh is that on the night of 13-5-77 it was seen that one Guddi daughter of Lacchi of Kaja-khera, with whom they had illicit relations was going from their room and there was some quarrel. Hemkumar is the brother of Lacchi, who is mother of Guddi. Shashi (PW 1) is the daughter of Hemkumar. Pradip Kumar while studying at Rajakhera stayed with Hemkumar. The accused persons, therefore have been falsely implicated. Hemkumar is the brother of Lacchi, who is mother of Guddi. Shashi (PW 1) is the daughter of Hemkumar. Pradip Kumar while studying at Rajakhera stayed with Hemkumar. The accused persons, therefore have been falsely implicated. The plea of accused Kedar was that he used to study in a school at Rajakhera, where Pradip Kumar was also studying and Pradip Kumar knew him. The learned Add. Sessions Judge placing reliance on the evidence of identification against accused persons Megha and Kedar and also placing reliance on the statement of Pradip Kumar against Harisingh and Amarsingh and on the evidence of recovery convicted and sentenced the accused appellants, as aforesaid. 10. Accused-appellants Megha and Kedar were arrested on 20.5.77. It is alleged that at the time of arrest of accused Megha on a search being taken, one Kundal alleged to be out of the Kundals of Shashi (PW 1) was recovered from h m. The other had already been recovered from accused Harisingh. Identification parade was held and accused appellant Harisingh and Amarsingh were put for identification on 18.5.77, but none of the witnesses, namely, Rajababu (PW 4), Shashi (PWl), Kanta (PW 3) and Kinno (not examined) identified any of the accused persons. 11. The submissions of the learned Advocate is that there was no sufficient light at the time of alleged dacoity in which any of the dacoits could be identified. He submits that a Kerosene lamp was introduced later on and its presence is not even mentioned in F. I. R. lodged by Pradip Kumar. It is further submitted that the accused appellants Amarsingh and Harsingh have been falsely implicated because of the plea of the accused persons already stated above. The learned advocate even submits that it is doubtful that any dacoity took place in the house of Pradip Kumar (PW2) as alleged by him. For Megha accused, it is submitted that the recovery cannot be held proved, because it. is alleged that he was at the bus stand and on search a Kundal was recovered. The S. H. O. is not supported by independent evidence as the witness of recovery has not supported. It is further submitted that so far as the recovery from other accused persons Harisingh and Amarsingh is concerned, only on the statement of the S. H. O. the same cannot be held as proved in the facts and circumstances of this case. 12. It is further submitted that so far as the recovery from other accused persons Harisingh and Amarsingh is concerned, only on the statement of the S. H. O. the same cannot be held as proved in the facts and circumstances of this case. 12. It may be stated at the very out set that in cases of dacoity before any reliance can be placed on the evidence of the witnesses, the Court has to look as to whether there was sufficient light at the time of dacoity and whether the witnesses could be in a position to identify the miscreants. In the instant case, so far as the accused Harisingh and Amarsingh are concerned, as already stated earlier, their identity only rests on the question as to whether the statement of Pradip Kumar (PW2) can be relied upon or not. Pradip Kumar in the Court has stated that the Kerosene lamp was lying in an 'Ala' and the dacoits lit it with the help of a match stick. He has stated that in the light of lamp, he identified the accused persons. There is no dispute that it was a dark night, being third night before Amawashya. Pradip Kumar (PW 2) has stated that there was also moon light in which the miscreants could be identified. The question, therefore, is as to whether there was moon light and whether the dacoits had lit the kerosene lamp in which the dacoits could be identified ? After having gone through the 'Panchang' for the year 1977, there can be no dispute that at about 2 in the night, there was some moon light. But, whether it was sufficient in which the miscreants could be identified ? A look at the F. I. R. (Ex. P. 4), will show that there is no mention either of the moon light in the night, or of a Kerosene lamp burning at the time of the incident. All that is mentioned therein is that the moment the accused persons put the end of the barrel of their gun on the chest of Pradip Kumar (PW 2), he was awakened and he gave out that he had identified his miscreants. The submission of the learned P. P. is that the very fact that these persons were identified goes to show that there was some light in which they could be identified. The submission of the learned P. P. is that the very fact that these persons were identified goes to show that there was some light in which they could be identified. Apart from Pradip Kumar (PW 2) who has said about the existence of moon light, no other witness for the prosecution states that the accused persons were identified in the moon lit night, or there was some moon light in which they could be identified. But, the case of the prosecution is that it was in the light produced by kerosene lamp, which was lit by dacoits themselves, that the dacoits could be identified. Shashi (PW1), Kanta (PW3) and Rajababu (PW 4) all belong to the family of Pradip Kumar (PW 2) and they state only of the light of the lamp in which the miscreants were identified, and none of them deposed that there was so much moon light in which the miscreants could be identified or were identified. It is worth mentioning here that though the' two accused-appellants Amarsingh and Harisingh were put in identification parade on 18-5-77 in Dholpur Jail, but Rajababu (PW 4), Kanta (PW3) and Shahsi (PW 1) did not identify any of them will later on deal with the evidence of the prosecution that the dacoits lighted a kerosene lamp but for the present suffice it so say that there is no mention of lighting a Kerosene lamp in the F.I.R. (Ex. P. 4), which was lodged by Pradip Kumar, (PW 2) after about 14 hours of the occurrence. 13. The F.I.R. (Ex. P. 4) was lodged after about 14 hours of the occurrence and there is no mention that the dacoits had taken a lamp from the 'Ala' and with the help of a match stick they lighted it. There is no mention that the accused persons were identified in that light. Not only this, when the S. H. O. (PW10) reached the spot and prepared site plan, he did not notice the existence of a kerosene lamp, which according to the prosecution was lying even then in the 'Ala. If the kerosene lamp would have been there, then it would have caught the eye of the Investigating Officer and he would have noted it in the site plan (Ex. P. 6) prepared by him. But again, there is no mention in Ex. P. 6 of any kerosene lamp. If the kerosene lamp would have been there, then it would have caught the eye of the Investigating Officer and he would have noted it in the site plan (Ex. P. 6) prepared by him. But again, there is no mention in Ex. P. 6 of any kerosene lamp. Therefore, the story of kerosene lamp appears to have been introduced later on during the course of statements of the witnesses, and its existence appears to be an improvement in the case of the prosecution. That apart, it does not appeal to reason that the dacoits, who according to the prosecution had gone to commit dacoity will take kerosene lamp, burn it so as to produce sufficient light in which the witnesses may be able to identify them. Therefore, I am of the opinion that the story of kerosene lamp and it being it by the dacoits them-I selves, in the presence of above circumstances and infirmities, cannot be relied upon. So far as the moon light is concerned, I have already said above that there is no mention of it in the F. I. R. (Ex.P. 4), as well as in the evidence of the witnesses, named above. It can, therefore, not be said that there was so much moon light in which the miscreants could have been identified If the accused appellants, Amarsingh and Harisingh, would have been known to Pradip Kumar (PW 2), as alleged by him, then it does not appeal to reason that for committing dacoity at the house of Pradip Kumar they would not have taken precautions to conceal their faces so as to avoid their identification. Pradip Kumar has stated that he came to know these accused persons when he was visiting a master, Shri Arjun Singh Chohan, who has not been examined by the prosecution. He has stated that he had only bid good bye to them on some occasions, and, therefore, he knows them. It has been further stated by him that so far as Amarsingh is concerned, he came to know him only 4-5 days prior the occurrence. He states that he was not on friendly terms with any of the accused persons and only knew them, because he used to go for tuition in the same buildings of the State Bank of Bikaner & Jaipur where the accused-appellants were posted as guards. He states that he was not on friendly terms with any of the accused persons and only knew them, because he used to go for tuition in the same buildings of the State Bank of Bikaner & Jaipur where the accused-appellants were posted as guards. The case of the accused-appellants is also that Pradip Kumar was known to them and along with them they used to visit the house of Hemkumar in via-a-via Rajakhera, where Pradip Kumar was staying while studying at Rajakhera, and there they developed illicit relations with one Guddi daughter of Laxmi and sister of Hemkumar. It is further their case that on 13-5-77 in the night, said Guddi was seen coming out of their room and there was some quarrel as a result of which they have been falsely implicated. It is not disputed that Shashi (PW 1) wife of Rajababu (PW 4), who is brother of Pradip Kumar (PW 2), is the daughter of Hemkumar. 14. It is admitted by Pradip Kumar (PW 2) that when he went to lodge the report at P. S Rajakhera, Hemkumar was present, though he states that he cannot say as to how he was there. Therefore, it can be said that the report which was lodged after about 12 to 14 hours of the alleged occurrence was lodged when Hemkumar had reached the police station. It can. no doubt, not be said that the accused persons have proved the plea taken by them about illicit relations with one Guddi, but the question is, as to whether only on the statement of Pradip Kumar it will be safe to hold that the accused persons were amongst those, who are alleged to have committed dacoity It has been stated by Pradip Kumar that the ladies were beaten by the dacoits when the ornaments were taken, but there is no medical report which can go to corroborate their statements, though Rajababu (PW4) States that he received injuries, Not only this, it is the case of Pradip Kumar (PW 2) that when the dacoits opened the Kotha, he was ail though looking towards it, and the dacoits did not find anything in any of the two boxes, and only in a box notes worth Rs. 4,000/- were found. 4,000/- were found. It is also stated by him that when the dacoits had made their escape, the villagers had arrived, and in order to facilitate their retreat, the dacoits had fired twice, but not a single villager has been produced to say that the dacoity took place at the house of Pradip Kumar (PW2) as alleged by him. It is not disputed that the villagers arrived, and if Pradip Kumar would have identified the accused Amarsingh and Harisingh, Pradip Kumar would have disclosed the names of the accused persons to the Villagers, but, as already observed above none of the villagers has been examined to corroborate the statement of Pradip Kumar that he identified and named the accused-appellants Amarsingh and Harisingh. Pradip Kumar (PW2) does not state that he named the three dacoits Amarsingh, Harisingh and Jhonpa, and only states that he told them that he knew them, but surprisingly Rajababu (PW 4) states that Pradip Kumar had named the three accused persons. To my mind, if one knows the miscreants, he will normally say, "I know you", but will not name all of them. Shashi. (PWI) states that she cannot say as to when her 'Devar' Pradip Kumar disclosed the names of the dacoits. Pradip Kumar (PW 2) in cross examination by Shri Bhagwati Prasad Advocate has admitted that so far as he remembers he gave a telegram to the Superintendent of Police when the Second Officer did not take his report, as he was a relation of Harisingh accused, and in that telegram he did not mention the name of the accused persons Harisingh and Amarsingh, and only mentioned bank guards, Bhansingh (PW 10) does not admit that Pradip Kumar complained to him about the conduct of the Second Officer of the Police Station. Therefore, though the telegram has not been produced, but Pradip Kumar admits that in the telegram he did not mention the names of the two accused appellants, and this is also a circumstance to be taken into consideration. Therefore, though the telegram has not been produced, but Pradip Kumar admits that in the telegram he did not mention the names of the two accused appellants, and this is also a circumstance to be taken into consideration. Therefore, in the absence of any injury on the ladies, who were allegedly beaten, and in the absence of the villager or neighbour that the dacoity took place in the house of Pradip Kumar, and in the absence of recovery of bricks allegedly opened by the dacoits only on the statement of Pradip Kumar it will not be safe to conclude that the two accused appellants Harisingh and Amarsingh were the two miscreants. That apart, there are various contradictions in the statement of Pradip Kumar (PW 2) on the point that three of the miscreants only were in Khakhi dress and were armed with 303 guns they were five. According to him, the number of miscreants was 10, and out of them 5 stayed out and five entered into the house. How' could he see those 5 miscreants, who were standing out side, in a dark night. Therefore, though in the moon light, one can identify those who are already known to him, but for the reasons stated above. Pradip Kumar (PW 2) cannot be relied upon, so far as the identity of the two accused-appellants Amarsingh and Harisingh is concerned. 15. The other evidence, which is against these accused appellants, is the recovery of a golden Kundal from Harisingh and golden chain from Amarsingh. Apart from the fact that Netram (PW 7), one of the motbirs of the recovery memos, has not supported the prosecution, and the other has not been examined, it may also be observed here that on 14th of May, 77 the room was searched and the two accused appellants were arrested, as also five guns were recovered. It was on 15th May, 77 that a golden chain and golden Kundal were recovered allegedly on the information and at the instance of the accused persons. It does not appeal to reason that when the accused persons were arrested, the Investigating Officer would not have cared to look for the incriminatory evidence i. e. the alleged stolen property from the premises which were in possession of the accused persons. It does not appeal to reason that when the accused persons were arrested, the Investigating Officer would not have cared to look for the incriminatory evidence i. e. the alleged stolen property from the premises which were in possession of the accused persons. Therefore, only on the statement of Bhamingh S H.O. (PW 10), it will not be safe to hold that the stolen property, which was stolen away in the alleged dacoity, was recovered from the accused persons, 16. So far as Kedar accused appellant is concerned, the only evidence against him is of identification, and he was identified by Pradip Kumar and Kanta (PW 3) in the identification parade held on 23-5-77. He was arrested on 20-5-77 and was sent to judicial custody on 23-5-77 as is apparent from the entry of column 5 of the identification memo. The case of accused Kedar is that he was studying in Rajakhera where Pradip Kumar (PW 2) was also studying. He has examined one Jainuddin (DW2), who is a clerk in the Higher Secondary School at Rajakhera. He has stated that Kedar son of Mahavir Prasad was a student in the school from 24-6-68 to 19-8-74 and Pradip Kumar Jain son of Devchand Jain, resident of Godupura, also joined the school on 15-7-72 and left the Shoool on 7-7-77. Rajakhera is a small town, therefore ordinarily if Pradip Kumar (PW2) studied in the School along with the accused appellant, the possibility of Pradip Kumar (PW 2) knowing the accused appellant cannot be ruled out. The accused also said at the time of identification in the parade that he was shown to the witnesses by the police in the Police Station. Therefore, only on the evidence of identification when I have held that there was not sufficient light in the house it will not be just and proper to hold that the accused was one of the dacoits, who participated in the alleged dacoity at the house of Pradip Kumar (PW 2). 17. Coming to the case of accused Megha, the case against him rests on the identification by Pradip Kumar (PW 2) and Shashi (PW I). I have already observed that there was not so much light at the time of alleged dacoity that the dacoits could have been identified by the witnesses Therefore, it will not be safe to rely on the evidence of identification in this case. I have already observed that there was not so much light at the time of alleged dacoity that the dacoits could have been identified by the witnesses Therefore, it will not be safe to rely on the evidence of identification in this case. The other evidence is the recovery of a Kundal of gold. The accused was at the bus stand when he was apprehended. Bhansingh S. H. O. (PW 10) is not supported by any evidence of independent witness so far as the recovery is concerned, and Netram PW7, the only witness of recovery does not support the prosecution. Therefore, only on the evidence of the S. H. O. it will not be safe to hold the recovery of the golden Kundal as proved. 18. The result of the above discussion is that the case against the four accused, Amarsingh, Harisingh, Megha and Kedar is rendered doubtful. It cannot be held that the case has been proved beyond reasonable doubt. Therefore, the appeal is accepted, the judgment of the learned Addl. Sessions Judge convicting and sentencing the accused Appellants u/s 305/397 I.P.C. is set a side each of the accused appellants is acquitted of the charge levelled against him, and they will be released forthwith, if not wanted in any other case. *******