Judgment P.N. Goel, J. 1. THE 5 appellants have been convicted and sentenced under Section 395 IPO to undergo RI for 7 years. Bhullan and Chhattar Singh, appellants are residents of village Sirsawa Harchandpur, within police station Bhagatpur, district Moradabad. Ahmad Noor, appellant is resident of village Bari Khera, police station Bhagatpur. Munna, appellant is resident of village Bibipur, police station Chhajiait, district Moradabad. Bhura, appellant is resident of village Kankar Ghera, police station Bhagatpur, district Moradabad. 2. A gang of 10-12 bad characters armed with deadly weapons committed dacoity on the night between 17th and 18th May, 1974 at about midnight at the houses of Gajram Singh and his father Siita Ram in village Benjaria, 10 miles from police station Tanda, district Rampur. Gajram Singh lodged a verbal report of this occurrence at the police station ok 18-5-1974 at 9.10 A.M. on 7-6-1974 at 8.30 A. M. Dharam Vir Singh. Station Officer, Police Station Tanda, P. W. 9, along with Balbir Singh Yadav, S. I., P.W. 34, arrested Bhullan and Chhattar Singh, appellants near the bridge of river Bhala while they were coming in a truck of Jailur Rahman P. W. 8. Some articles were recovered from their possession. For the purposes of the appeals suffice it to say that an unlicensed gun was recovered from the possession of Chhattar Singh. These appellants were taken to police station Tanda. On the same day they were sent to district Jail, Rampur, at 3.10 P. M. along with Jaggu Ram, constable, P. W. 19, by Mehtab Singh, Constable clerk, P. W. 24. on 10-6-1974 at 6.40 A. M. Munna and Bhoora appellants were arrested by Dharam Vir Singh and Balbir Singh Yadav (P. Ws. 9 and 34) from the road near the town of Tanda. They were taken to police station Tanda where they reached at 9.45 A. M. On the same day at 10.30 A. M. they were sent to jail by Mehtab Singh, P. W. 24 along with Dharampal Singh, constable, P. W. 29. On 10-6-1974 at about 10 A. M. Ahmad Noor appellant was arrested by Balbir Singh Yadav from the Tiraha of Tanda. He reached the police station at 10.10 A. M. He was also sent to jail al. 10.30 A. M. along with Dharam Pal Singh, PW 29. 3. ON 10-7-1974 all the 5 appellants were put up for test identification. On 10-6-1974 at about 10 A. M. Ahmad Noor appellant was arrested by Balbir Singh Yadav from the Tiraha of Tanda. He reached the police station at 10.10 A. M. He was also sent to jail al. 10.30 A. M. along with Dharam Pal Singh, PW 29. 3. ON 10-7-1974 all the 5 appellants were put up for test identification. The proceeding was conducted by a Magistrate. ON that date 3 other persons/suspects were put up for identification. Gajram Singh, PW 1 correctly identified 7 suspects including the 5 appellants. His brother Ram Kumar Singh, PW 2, identified all the suspects. Ram Chandra Singh, PW 6, a neighhour, identified 6 suspects correctly including the 5 appellants and committed two mistakes. 4. THE investigation of this case was entrusted to Balbir Singh Yadav, S. I. on 18-5-1974, he recovered 2 fired cartridges Exs. 28 and 29 from the roof of the house of Gajram Singh. These fired cartridges reached Sadar Malkhana on 7-6-1974. Indra Kumar Mandal, constable, PW 25 handed over the sealed bundle of the cartridges to Harpal Singh, Moharrir, Malkhana, PW 16. On 19-8-1974 these cartridges and unlicensed gun recovered from Chhattar Singh, appellant were sent to ballastic expert for examination. THE ballistic expert expressed the opinion that the two cartrides were fired with the said gun. The 5 appellants did not admit to have taken part in the dacoity. All of them asserted that they were arrested from their houses and shown to the witnesses at police station Tanda as well as tin village Banjaria. 5. THE prosecution mainly relied on the testimony of Gajram Singh, Ram Kumar and Ram Chandra Singh. THE appellants did not examine any witness in their defence. THE learned Second Additional Sessions Judge, Rampur believed the evidence of the 3 prosecution witnesses mentioned above. He also found that the two cartridges recovered by the Investigating Officer from the roof of Gajram Singh were fired from the gun recovered from Chhattar Singh and this circumstance clearly implicated Chhattar Singh with the crime. Consequently all the 5 appellants were convicted. 6. SRI G.C. Saxena, counsel for Bhullan, SRI P.N. Misra, counsel for Chhattar Singh, Munna and Bhoora and the learned State counsel were heard. The counsel for Ahmad Noor, appellant did not come up. The entire record was carefully perused with the help of the parties counsel. 7. Consequently all the 5 appellants were convicted. 6. SRI G.C. Saxena, counsel for Bhullan, SRI P.N. Misra, counsel for Chhattar Singh, Munna and Bhoora and the learned State counsel were heard. The counsel for Ahmad Noor, appellant did not come up. The entire record was carefully perused with the help of the parties counsel. 7. SRI P.N. Misra urged that there was not sufficient opportunity and light in which the prosecution witnesses could have fully marked the faces of the dacoits. 8. IT is abundantly clear from the statements of Gajram Singh that on the night of occurrence a lantern was burning inside his house, that he was inside his house at the time the dacoits entered into his house and indulged in looting his articles. Then within 10 minutes of the entering of the dacoits into his house, he got an opportunity and ran out of his house. He raised alarm in the village. Then he went into the Gher of his brother, Ram Kumar Singh, PW 2. On hearing the sound of gun slots etc. Ram Kumar Singh who was sleeping in his gher and Ram Chandra Singh who was sleeping in his house woke-up. Gajram Singh happened to reach in front of the house of Ram Chandra Singh. Then Ram Chandra Singh also came into the Gher of Ram Kumar Singh along with Gajram Singh. Gher of Ram Kumar Singh is just in front of the house of Gajram Singh, vide site plan, Ex. Ka. 24. House of Gajram Singh faces east. There is a passage between the house of Gajram Singh and the Gher of Ram Kumar Singh. At the north eastern corner of the house of Gajram Singh, there is chaupal of his father Sita Ram. To the north of this chaupal, there is house of Sita Ram. To north of the "Gher of Ram Kumar Singh, there are houses of Charan Singh and Dharam Pal Singh and then the house of Ram Chandra Singh, PW 6. 9. SOME pual and pieces of wood were lying at the north western corner of the Gher of Ram Kumar Singh Ram Kumar Singh set fire to the pual, This created sufficient light. 10. IT will thus be seen that at the time of the dacoity there was sufficient bright light in which the 3 prosecution witnesses could have easily marked the faces of the dacoits. 10. IT will thus be seen that at the time of the dacoity there was sufficient bright light in which the 3 prosecution witnesses could have easily marked the faces of the dacoits. It is in evidence that the dacoity lasted for 1 1/4 hours. In the course of the dacoity the dacoits were bringing articles and keeping the same outside the door of the house of Gajram Singh. Ram Kumar Singh saw the faces of the dacoits for about 1.1/4 hours. Gajram Singh and Ram Chandra Singh saw the dacoits for about an hour. Hence all the three witnesses had sufficient time and opportunity to see the faces of the dacoits. 11. IN view of the above there ils no force in the contention of the appellant's counsel. 12. SRI P. N. Misra next contended that the performance of the 3 prosecution witnesses in the identification proceeding was too good to be believed. Gajram Singh identified 7 suspects correctly and did not commit any mistake. Ram Kumar Singh identified 8 suspects correctly and did not commit any mistake. Ram Chandra Singh identified 6 suspects correctly and committed two mistakes. There is no absolute rule that if a witness identifies all suspects correctly, his evidence is necessarily bad and should not be relied upon. Each case has got to be decided on its own facts. It depends upon the power of observation of each individual whether he is able to recollect the faces of the bad characters. It will firstly be noticed that the identification proceeding was held in less than 2 months after the occurrence. There was sufficient bright light. All the three witnesses were standing just in front of the door of the house of Gajram Singh at a short distance. Gajram Singh was aged about 41 years, Ram Kumar Singh, aged about 29 years and Ram Chandra Singh, aged about 25 years on the date of the occurrence. Thus they were all young men, therefore, they could have easily seen and remember the faces of the dacoits which they had seen for about an hour. Of course during this period the dacoits were going in and coming out of the house. In the circumstances of the present case the performance of the prosecution witnesses does not create any doubt as to their identification of the suspects. Of course during this period the dacoits were going in and coming out of the house. In the circumstances of the present case the performance of the prosecution witnesses does not create any doubt as to their identification of the suspects. Sri P.N. Misra and Sri G.O. Saxena pointed out that Bhullan and Chhattar Singh, according to the prosecution, were arrested on 7-6-1974 at 8.30 A. M. and then they reached the police station at 1105 A. M. The fact that these two appellants were arrested from the bridge of Bhala Nadi while they were coming in a truck is amply proved by the testimony of Dharamvir Singh, Balbir Singh Yadav and Jalilur Rahman, owner of the truck. The prosecution also examined Rahat Jan, driver of the truck, Mohd. Navi, cleaner of the truck, Abdul Aziz and Abdul Shakoor, labourers on the truck, P. Ws. 14, 15, 30 and 31. The testimony of these witnesses also go to indicate that two persons were allowed to sit in the truck and that the said persons were arrested by the police. There is no evidence that these two witnesses (? accused) were arrested from their house. 13. MEHTAB Singh, constable clerk, P.W. 24 has clearly stated that Bhullan and Chhattar Singh were brought to the police station on 7-6-1974 at 11.05 A.M. that at 11.45 A. M. Dharamvir Singh, Station Officer, took them away from the police station, that then they were brought back to the police station at 2.45 p. m. and then they were sent so jail at 3.10 p. m. Dharamvir Singh has admitted this fact. In examination-ira-chief he did not depose about it. In cross-examination he was questioned that he had taken away these appellants from the police station to show them to tike witnesses. He denied the suggestion. Then he was re-examined by the prosecution. He stated that he took away Chhattar and Bhullan from the police station to the village of Chhattar and then brought them back to the police station. For what purpose he had taken these two appellants was not stated by him, His cross-examination shows that he had taken them for taking search of their houses. Both these appellants are residents of the same village. Dharamvir Singh stated that he took search of the houses of these two appellants. It appears that no incriminating article was found. For what purpose he had taken these two appellants was not stated by him, His cross-examination shows that he had taken them for taking search of their houses. Both these appellants are residents of the same village. Dharamvir Singh stated that he took search of the houses of these two appellants. It appears that no incriminating article was found. It is obvious that the search must have been taken in the presence of respectable witnesses of the village. Dharamvir Singh stated that he did not remember the names of the witnesses in whose presence the search was taken. He did not prepare any search memo of the alleged searches. He is unable to tell the direction towards which the houses of Chhattar Singh and Bhullan open. He is also not able to tell the accommodation inside the houses of these two appellants. The prosecution has not examined any witness to depose that Dharamvir Singh had brought these appellants to village Sirsawa and had taken search of their houses. In these circumstances it cannot be believed that Dharamvir Singh took these appellants to their houses for the purpose of search. This goes to indicate that in all probability be took these appellants to the village of occurrence and showed them to the witnesses. In any case the probability of these two appellants having been shown to the witnesses cannot be ruled out. Therefore the evidence of identification of the prosecution witnesses in respect of these two appellants cannot be viewed without suspicion. The benefit of suspicion must go to the appellants. It may be added that Bhullan and Chhattar Singh reached jail on the next day. 14. THE position which appears in tie case of Bhullan and Chhattar Singh does not appear in the case of Munna, Bhoora and Ahmad Noor. Munna and Bhoora were arrested on 10-6-1974 at 6.45 A. M. from near the town of Tanda. They reached the police station at 9.45 A.M. Then Balbir Singh Yadav arrested Ahmad Noor at 10 A. M. from the town of Tanda. He reached the police station at 10 A M. THE defendant has not shown by cross-examination as to where Munna and Bhoora were kept between 6.45 and 9.45 A.M. These two appellants have not led any evidence that they were arrested from their villages Bibipur and Kankar Ghera. He reached the police station at 10 A M. THE defendant has not shown by cross-examination as to where Munna and Bhoora were kept between 6.45 and 9.45 A.M. These two appellants have not led any evidence that they were arrested from their villages Bibipur and Kankar Ghera. Had these two appellants been arrested from their villages then perhaps it was not possible for Balbir Singh to have brought them to the police station by 9.45 A. M. These two appellants have not given time of their arrest. Munna, Bhoora and Ahmad Noor were sent from the police station at 10.30 A. M. and were admitted in jail on the same day. THE evidence of the three prosecution witnesses against these three appellants can easily be relied upon and cannot be disbelieved. With regard to the circumstance that two fired cartridges found on the roof of Gajram Singh were found to have been fired by the gun recovered from Chhattar Singh, suffice it to say that for the reasons assigned hereunder, it is no circumstances against Chhattar Singh:- (1) The dacoity took place on the night between 17th and 18th May, 1974. Chhattar Singh was arrested about 20 days after the occurrence. At the time of arrest the gun was recovered from him. In the time gap of 20 days the gun can easily change hands. Therefore, there could be no presumption that Chhattar Singh had actually used the gun at the time of occurrence (vide Sec. 114 Evidence Act). The gun may have been used by some other bad character and then passed on to Chhattar Singh. (2) The fired cartridges were recovered by Balbir Singh Yadav in the presence of Net Ram and Ompal. These two witnesses were not produced by the prosecution. There is no evidence to show that on the sealed bundle of the fired cartridges, these witnesses were made to sign. The cartridges remained at the police station upto 7-6-1974 on which date the gun was recovered. According to the G. D. entry, Ex. Ka. 14, the cartridges were handed over to the constable at 8.10 A. M. for taking them to Sadar Malkhana. The cartridges remained at the police station upto 7-6-1974 on which date the gun was recovered. According to the G. D. entry, Ex. Ka. 14, the cartridges were handed over to the constable at 8.10 A. M. for taking them to Sadar Malkhana. Chhattar Singh was arrested at 8.30 A.M. and he reached police station at 11.05 A. M. The hard fact which remains is that Chhattar Singh reached the police station on 7-6-1974 and the bundle of the fire-d cartridges is sent to Sadar Malkhana on the same day. We have noticed the conduct of Dharamvir Singh. He took away Chhattar Singh and Bhullan out of the police station for some hours and could not give a satisfactory explanation for doing so. In this aspect of the matter it is not unbelievable that the time of sending the bundle of fired cartridges in the General Diary would have been wrongly shown. Therefore, the police officers could easily fire 2 cartridges with the gun recovered from Chhattar Singh and then send them to the ballistic expert for opinion. 15. THE position that follows is that the recovery of gun from the possession of Chhattar Singh from which the two fired cartridges examined by the ballistic expert were fired does not constitute any circumstance against Chhattar Singh. 16. THE result of the above discussion is that the conviction and sentence of Bhullan and Chhattar Singh deserve to be set aside and there is no substance in the appeals filed by Ahmad Noor, Munma and Bhoora. Sri P. N. Misra, urged that (the sentence of 7 years be reduced to 5 years. There is no sufficient ground for doing so. The offences of dacoity are common and the dacoits do not deserve to be dealt with leniently. 17. CRIMINAL Appeals Nos. 28 and 63 of 1976 preferred by Bhullan and Chhattar Singh are allowed and their conviction and sentence under Sec. 395 IPC recorded by the 2nd Additional Sessions Judge, Rampur are set aside. They are acquitted. They are on bail. They shall not surrender. Their bail bonds are discharged. 18. CRIMINAL Appeals Nos. 2723 of 1975, 64 of 1976 and 402 of 1976 preferred by Ahmad Noor, Munna and Bhoora are dismissed. Their conviction and sentence under Sec. 395 IPC recorded by the 2nd Additional Sessions Judge, Rampur are affirmed. They are on bail. They are on bail. They shall not surrender. Their bail bonds are discharged. 18. CRIMINAL Appeals Nos. 2723 of 1975, 64 of 1976 and 402 of 1976 preferred by Ahmad Noor, Munna and Bhoora are dismissed. Their conviction and sentence under Sec. 395 IPC recorded by the 2nd Additional Sessions Judge, Rampur are affirmed. They are on bail. They shall forthwith be taken into custody to serve out the sentence. Ordered accordingly.