JUDGMENT 1. - All the four appeals arise out of the same judgment of the learned Additional Sessions Judge and hence are being disposed of by a common judgment. 2. The incident out of which these appeals arise took place in the night intervening 8th and 9th November, 1979 at about 1.30 in the night when Shyamlal P.W. 19, a steno typist who sits in the court premises and also works with Mr. M.C. Bhoot advocates was returning to his house from the office of Mr. Bhoot situated in Hyder-Building, Jodhpur. It is alleged that he was on his cycle and when he was near the house of one Mathur on Harish Joshi Marg. a taxi (three wheeler) came from his back and he was asked to stop. No sooner Shyam Lal P.W. 19 stopped, it is alleged that the three accused persons namely Insaf Ali, Fateh Mohammed and Prakash came out of the taxi. Abdul Hanan, the driver remained seated in the taxi. All the three accused persons who came out were armed with knives and they asked Shyamlal to hand over whatever he had with him. When he did not agree, it is alleged that accused Prakash placed his knife near his ear and pierced it. Shyamlal apprehending danger to his life at the hands of the accused persons did not put any further resistance and it is alleged that accused Insaf Ali took away bis wrist watch Henry Sandoz and Phillips Radio Transistor, Rs. 150/-which were with Shymalal were also taken away. Shyamlal had another Rs. 1050/- in his inside pocket and that amount also was taken away by Insaf Ali. It is alleged that besides the taxi driver one more persons was in the taxi and the total number of the accused was live. The accused persons having committed dacoity made their escape in the taxi, P.W. 19 Shyamlal went to police station Sardarpura and lodged a written report Ex. P. 19A. A case was registered and the investigation was set in motion. It appears that on the same night two more occurrences of robbery took place and one Purushottam was also robbed on the same day at about 5.30 a.m. He lodged report Ex. 18 in police station Khandaphalasa. P. 19A. A case was registered and the investigation was set in motion. It appears that on the same night two more occurrences of robbery took place and one Purushottam was also robbed on the same day at about 5.30 a.m. He lodged report Ex. 18 in police station Khandaphalasa. The third occurrence had taken place under police station Division A. Jodhpur and it appears that on the same night three persons namely Insaf Ali, Fateh Mohammed and Prakash were apprehended. When the search of accused appellant Insaf Ali was taken by Surendra Mohan, A.S.I. P.W. 17 under the arrest and search memo Ex. P. 8, two wrist watches, (one lady Henry Sendoz and the other gents watch) and a golden locket were recovered. A knife was also recovered from Insaf Ali which appeared to be blood stained and as such it was seized and sealed. Though nothing was recovered from Abdul Hanan, at the time of his arrest, on his information currency notes worth Rs. 130/- were recovered. It appears that the lady sandoz watch article 5 was handed over to police station Sardarpura being the property of the present case and so also Rs. 130/- recovered on the information of Abdul Hanan were given to the SHO in this case. 3. Accused Fateh Mohammad along with two others was only arrested in this case on 21-11-79. While in police custody he made a discovery statement Ex. P. 26 to Gordhan Singh P. W. 22, S.H.O. Sardarpura that he had kept a Philips Radio-transistor in his house and could get it recovered. Consequent to the discovery statement Ex. P. 26. Accused in the presence of Matbirs Gulam Mohammad P.W. 5 and Bundukhan P.W. 6 got recovered a philips radio-transistor article 9. It was seized and sealed at the spot. Appellant Prakash was arrested by Aidanram P.W. 28 on December 8. 1979 at 8.40 p.m At the time of his arrest a knife was recovered from him. He like all other accused persons who were directed to remain baparda at the time of their arrest was directed to remain baparda. It was seized and sealed at the spot. Appellant Prakash was arrested by Aidanram P.W. 28 on December 8. 1979 at 8.40 p.m At the time of his arrest a knife was recovered from him. He like all other accused persons who were directed to remain baparda at the time of their arrest was directed to remain baparda. All the accused appellants namely Insaf Ali, Fateh Mohammad and Abdul Hanan were put for identification before Shri Baldevpuri Goswami P.W. 21 in the identification parade conducted in jail on 26-11-79 Shyamlal P.W. 19 identified all the accused persons as the miscreants who had committed robbery of his property, Shri Goswami also conducted the identification parade of Prakash on December 21, 1979 and the identification parade Shyamlal identified him as a participant in the crime. 4. It may be stated here that another accused Govind Ram was also arrested but as he was not identified and there was no evidence with the name against him and no case was made out against him, a Final Report (F.R ) was submitted. 5. All the four accused persons were committed by the learned Magistrate to the court of Sessions for trial and the learned Sessions Judge transferred the case for trial to the learned Additional Sessions Judge No. 2, Jodhpur who tried all the four accused appellants for charge under Section 395, 324/149 I.P.C. and under Section 25 of Arms Act for possessing knife without any licence. All the accused persons pleaded not guilty to the charges and claimed to be tried. On behalf of the prosecution as many as 28 witnesses were examined. Thereafter each of the accused was examined under section 313 Cr. P.C. to explain the circumstances appearing against each of them. All the accused persons stand on a bare plea of denial. A special feature of the case was that accused appellant Prakash refused to answer the questions put by the learned Magistrate and thus has not explained circumstances appearing against him in the evidence of the prosecution witnesses. Accused Fateh Mohammed examined two witnesses in defence D.W. 1 Manobbor and D.W. 2 Abdul Gafoor. The other accused persons did not examine any witness in defence. Accused Fateh Mohammed examined two witnesses in defence D.W. 1 Manobbor and D.W. 2 Abdul Gafoor. The other accused persons did not examine any witness in defence. The learned Additional Sessions Judge convicted accused appellants under section 395 and 324/149 I.P.C. under section 395 I.P.C. each of the accused has been sentenced to undergo four years rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of which to further undergo three months R.I. Under section 324/140 I.P.C. each of the accused has been sentenced to undergo three months R.I. The substantive sentence under the both the counts were ordered to run concurrent. 6. I have heard the learned counsel for the appellants individually and the learned Public Prosecutor and have perused the record of the case.The first question is as to whether any offence under section 395, I.P.C is made out as has been held by the learned trial court. Dacoity has been defined in section 391 I .P.C. and the participation of five or more persons jointly in the commission or the attempt to commit the offence of robbery is dacoity. It will presently show that the case of the prosecution that in the taxi there were five persons is not proved beyond reasonable doubt. Let us first hove a look at the F. J.R. Ex. P. 19-A which was lodged immediately after the occurrence by Shymalal P.W. 19. In it he does not categorically say that besides the driver and the three accused who actually compelled him to part with, his valuables there was any body else in the taxi. All that has been stated in Ex. P. 19 is that there were none or two persons also seated in the taxi, but when the police officer who recorded the F.I.R. questioned Shyamlal further, he was unable to say as to how- many persons were sitting in the taxi. Though in the court he has given a categorical statement that there were two more persons scaled in the taxi but when he was confronted with the portion C-D of Ex. P. 19-A wherein he clearly made a statement that he was unable to say as to how many persons were sitting in the taxi he could not explain the conflict. P. 19-A wherein he clearly made a statement that he was unable to say as to how many persons were sitting in the taxi he could not explain the conflict. Though it is not very relevant as to how many persons were arrested later on in Division A, Police Station after allegedly having committed two more occurrence, but it may be observed there that only three accused persons were arrested, namely Fateh Mohammed, Insaf Alia and Abdul Hanan. I am, therefore, of the opinion that on the statement of Shyamlal it cannot definitely be said that the number of accused persons who participated in robbery was five or more than five, therefore, an offence under section 395 I.P.C. is not brought home against any of the accused person and if as a result of the discussion any offence is made out, it will be only an offence under section 394 I.P.C. 7. The case against accused persons rests on the solitary statement of Shyamlal PW 19 as well as recovery of the alleged stolen property from some of them. For the proof of a certain fact no particular number of witnesses is required in a case and this is clear from a bare perusal of section 134 of the Evidence Act. Courts are put on caution on placing reliance on the evidence of identification a single witness, if the case rests only on identification. In Pirthi and anr. v. State (AIR 1966 All. page 607) it was observed in para 18 of the judgment that in exceptional cases evidence of identification by a single witness may suffice. But the general rule of practice and prudence in dacoity cases is that a single identification should not be acted upon. A Division Bench of the Orissa High Court in State of Orissa v. Chhaganlal and Others (1977 Cr.L.J. page 319) has observed that unless there are material discrepancies in the evidence of an eye witness or unless it is inherently incredible there is no reason why the evidence of a direct witness alone even though uncorroborated, will not be accepted. To my mind as already observed above in the given case, if the evidence of a single identifying witness inspires confidence, the court can rely on it and can convict the accused. But in a case depending on a sole identifying witness, the court must examine his evidence with greater caution. To my mind as already observed above in the given case, if the evidence of a single identifying witness inspires confidence, the court can rely on it and can convict the accused. But in a case depending on a sole identifying witness, the court must examine his evidence with greater caution. Whether or not the witness was in a position to identify will depend on the various circumstances such as the availability of light at the scene of occurrence, the time of the occurrence, the closeness of the witness to the accused etc. It will also depend as to whether the identification parade which is a stage of investigation and corroborate a piece of bundel was held without any undue delay. 8. Let us examine the statement of Shyamlal in the light of the observations made just above. Shyamlal PW 19 has stated that there was road light at the time of the occurrence and he identified the accused persons in the road light. It has come in his statement that all the three accused persons namely Fateh Mohammed, Insaf Ali, and Prakash, who participated in robbing all his valuables were very close to him and the occurrence took place for about 5-10 minutes. At the time of the incident, a witness only gains an impression of the accused which he keeps in his mind and later on he is able to identify the accused in the identification parade which is held without any undue delay. At times impressions about the fractures of the accused may or may not be correct. In the instant case the case of some of the accused depends on identification and the recovery of the property. The criticism of the learned Advocates for the accused is that there is no mention of the road light either in Ex.P. 19-A or any stage during the investigation of the case and even the S.H.O. who prepared the site plan has not mentioned the existence of light. The criticism of the learned Advocates for the accused is that there is no mention of the road light either in Ex.P. 19-A or any stage during the investigation of the case and even the S.H.O. who prepared the site plan has not mentioned the existence of light. It is further submitted that the road light as a source of light in which the complainant Shyamlal is said to have been identified the accused persons is mentioned at the first time in the statement of Shyamlal PW 19 recorded in the court and in the absence of any mention of it in the F.I .R. and site inspection note the case of the prosecution that there was road light should not be acted upon. The offence is said to have taken place on the main road Harish-Joshi-Marg, where the houses of Government Officers highly placed as well as the Judges of the High Court are situated. To me it appears to be a lapse on the part of the S.H.O. to omit to mention in the site plan that there are tube lights on the road. I have no reason to disbelieve the statement of Shyamlal PW 19 that there was road light in which 'he miscreants were identified by him. I am, therefore, of the opinion that there was sufficient light for identifying the accused persons, more so when they were so close to Shyamlal and the incident is said to have taken place in a manner that a knife was placed and then he was forced to part with the valuables, Rs. 1200/-, a wrist watch and a Philips radio transistor. 9. I will take up the case of individual accused separately as I have already stated that against some there is only identification evidence, and against some there is identification and recovery of the stolen property. 10. I will first of all take the accused Prakash. Against him the only evidence is that he was one of the three accused persons armed with a knife and placed the knife near the ear of Shyamlal and compelled him to part with his money and other valuable property. The only evidence against him is identification and no recovery of any property is alleged to have taken place from him. The knife which was recovered from him has not been connected with the crime. The only evidence against him is identification and no recovery of any property is alleged to have taken place from him. The knife which was recovered from him has not been connected with the crime. The occurrence took place in the night intervening 8th and 9th of November 1979 and accused Prakash was arrested on December 8, 1979. A look at the F.I.R, Ex. P. 19-A will show that it is not mentioned there that only one of the accused persons attacked Shyamlal with a knife that on the contrary it is mentioned that all the three persons attacked him with knife. He did not even state that the man who according to him was lean, long and of wheatish colour had placed knife near his ear, These features of one of the accused were given by Shyamlal on further interrogation by the police and are mentioned just below Ex. P. 19A. in the proceedings of the police. I have already said above that the evidence of identification is nothing but impressions gained by the witness at the time of the occurrence and the evidence of identification based on personal impressions certainly requires carefully scrutiny because it apt to be deceptive and may lead to miscarriage of justice. In the instant case the accused was arrested on December 8, 79 but he was sent to judicial custody on December 15, 1979 and the identification parade was only held on December 21, 1979. The prosecution has not explained as to why the accused was not sent to judicial custody immediately after his arrest if his identification parade was to be held. It cannot be said to be a case where the police wanted to recover any property from the accused any such property which was capable of being identified. As per the prosecution case a wrist watch Henry-Sand-, a Philips radio transistor some currency notes were taken away by the miscreants. It is said by the learned Public Prosecutor that the accused Prakash had to be taken to Udaipur where he was found to have spent the money allegedly taken away at the time of the occurrence from Shyamlal. As per the prosecution case a wrist watch Henry-Sand-, a Philips radio transistor some currency notes were taken away by the miscreants. It is said by the learned Public Prosecutor that the accused Prakash had to be taken to Udaipur where he was found to have spent the money allegedly taken away at the time of the occurrence from Shyamlal. To my mind normally if the identification parade is to be held the better course is to immediately send the accused to the Judicial custody so that all reasonable possibilities of the accused being shown to the witnesses who are to identify him; are excluded. Be that it may the prosecution could not submit any reasonable explanation about the delay of about. 7 days in sending the accused to judicial custody when no recovery of any property was to be made from the accused. This court in Hazari v. State of Rajasthan (1979 Rajasthan Criminal Cases, page 48) was dealing with a case where the accused was kept in Police custody for eight days. It was held that such period of police detention without reasonable explanation does not inspire confidence. The Division Bench of this Court in Ganga Singh v. state of Rajasthan (Cr. L.J. 1978 page 269) in para 4 observed that in determining the value of test identification parade one of the vital factors that has to be considered is whether the identification parade was held within a reasonable time after the arrest of the accused and, if not so, whether there is convincing explanation from the said of the investigating agency for delay in conducting the test-parade. 11. In view of the above discussion only on the sole testimony of Shyamlal about identification of the accused Prakash it will not be safe to say that the accused Prakash was one of the accused who committed the offence of robbery. I have already said above that there is no other evidence against accused Prakash and though the conduct of the accused that he refused to answer questions put to him in his statement under sec. 313 Cr. P.C. cannot be appreciated but in a criminal case the court has to see if the prosecution has proved the case against an accused beyond reasonable doubt. 12. 313 Cr. P.C. cannot be appreciated but in a criminal case the court has to see if the prosecution has proved the case against an accused beyond reasonable doubt. 12. I will therefore, hold that Prakash cannot be convicted in the evidence on record and a reasonable doubt is created against his participation in the crime. 13. I will take the case of Abdul Manan now. His case to my mind stands on a better footing. The only evidence against him is identification by Shyamlal. So far as the recovery of Rs. 130/- is concerned, the notes are not connected with the crime. Abdul Manan is said to be the driver of the taxi (three Wheeler). He did not come out of the taxi and remained seated in when the three other accused persons are said to have compelled Shyamlal to part with belongings. It has come in the statement of Shyamlal that he was standing in between the tree and the taxi. He has also stated that three persons came out of the taxi and surrounded him and the occurrence took place. Therefore, at the time of occurrence he could have hardly seen the driver of the taxi. In his statement Ex.D.l with which he was confronted, he has clearly stated that because of darkness and because of the taxi was at a distance from him, be could not see the number of the Taxi. Thus it appears to be reasonable that because of the shade of the tree, there might have been some darkness and because the driver did not come out of the taxi, Shyamlal could not be in a position to identify the driver. At any rate a reasonable doubt is created as to whether in the facts and circumstances of the case and in the manner the occurrence is alleged to have been taken place, Shyamlal could be in a position to identify the driver. Therefore, it will not be safe to convict accused Abdul Manan of the offence with which he was charged. 14. I will now take the case of the remaining two accused persons Fateh Mohammad and Insaf Ali. Therefore, it will not be safe to convict accused Abdul Manan of the offence with which he was charged. 14. I will now take the case of the remaining two accused persons Fateh Mohammad and Insaf Ali. The conviction of each of the accused persons is based on identification as well as recovery of the property: Insaf Ali accused was arrested the same night by the S.H.O. Division A. Police Station, Jodhpur along with the two other persons Fateh Mohammad and Abdul Manan. At the time of his arrest a wrist watch was taken under memo Ex. P. 8 and the wrist watch, lady henry-sandoz, the other watch and a golden locket were recovered from him. The folder locket and the other wrist watch are not connected with the present case and only the Henry Sandoz-wrist watch is said to be connected with the present case. Though in the F. I.R. Ex. P. 19A it is not mentioned as to whether henry sandoz-watch was ladies watch or gents watch but Shyamlal has identified the watch article 5 as belonging to him and having been taken by the miscreants in the robbery. The accused has not claimed the watch therefore, notwithstanding the above differences in the F.I.R. and the statement, it can be said that the Henry Sandoz-watch was the same which Shyamlal was having at the time of the robbery. Though P. W. 7. Umedram one of the witnesses has not supported the prosecution and has turned hostile,but the memo Ex.P.8 bears his signatures.Therefore,looking to the contents of the memo, the statement of Umedram that in the search of Insaf Ali watch was not recovered cannot be relied upon. The fact that Insaf Ali was arrested in the morning of November 9, 1979 and the present occurrence had taken place at about 1.30 a.m. in the night intervening 8th and 9th November, 1979, and that the recovery of the wrist watch article 5, from the accused Insaf Ali in the morning connects him with the crime. Accused in his statement could not explain the possession of the wrist watch article 5. If this recovery is looked into along with the identification evidence, to my mind a charge under sections 394 and 324/34 I.P.C. is brought home against the accused. Accused in his statement could not explain the possession of the wrist watch article 5. If this recovery is looked into along with the identification evidence, to my mind a charge under sections 394 and 324/34 I.P.C. is brought home against the accused. I have already said earlier the participation of 5 or more person is not made out and the accused therefore, cannot be convicted under section 395 I.P.C. Though the accused was arrested on November 9, 1979 but not in the present case. He was arrested in some other case of Division A police Station, Jodhpur. In the present case he was arrested on November 21, 1979 and was sent to judicial custody on November 23, 1979. He was kept baparda and was allowed to remain as such as the identification parade was to be held. I have already said that there was sufficient light at the scene of occurrence and in the manner the occurrence took place Shyamlal was in a position to identify the miscreants The Statement of Shyamlal about the identification is corroborated by the test identification parade. Therefore, the accused is liable under sections 394 and 324/34 I.P.C. 15. So far as Fateh Mohammad is concerned, from him a transistor radio, article 9, was recovered. It was recovered from his house. Though P.W. 5 Gulam Mohammad has not supported the recovery but Gordhan Singh P.W. 22 has stated that the accused made a discovery statement on November 21, 1979 i.e. on the date he was arrested in the present case. The accused was a tenant in house from which he got recovered a radio transistor next day of his information. Though the accused has led evidence that he did not reside in this house but that evidence has rightly been disbelieved by the trial court. Accused has not claimed the radio transistor recovered from him. It is the stolen property the snatch of theft, and Shyamlal identified it in the court as belonging to him and having been taken away by the miscreants at the time of the occurrence. Though as stated earlier Umedram P.W. 7 turned hostile but in view of the statement of Shiv Singh P.W. 27 and Gordhan Singh P.W. 22 the recovery of the radio transistor from the accused is proved. The Motbir witnesses have stated contrary to the content of the recovery memo Ex. Though as stated earlier Umedram P.W. 7 turned hostile but in view of the statement of Shiv Singh P.W. 27 and Gordhan Singh P.W. 22 the recovery of the radio transistor from the accused is proved. The Motbir witnesses have stated contrary to the content of the recovery memo Ex. P. 7 and there is no reason to disbelieve the statement of Shri Singh who appears to have no it will or animus against the accused. 16. Similarly so far as the evidence of identification by Shyamlal accused is concerned, Fateh Mohammad was arrested on November 21, 1979 and was sent like the other accused Insaf Ali to judicial custody on November 23, 1979 i.e. without any undue delay. This identification parade was held on November 26, 1979 and the accused was identified, statement of Shyamlal recorded in the court about the identification of accused Fateh Mohammad is corroborated by test identification. The participation of the accused in the offence of robbery under section 394 is further proved by the recovery of the property a Radio-transistor. Thus Fateh Mohammad is liable under sections 394 and 324/34 I.P.C. 17. In the result the appeals of accused Prakash and Abdul Manan are hereby allowed. The judgment of the learned Additional Sessions Judge convicting each of them under section 395 and 324/149 is set aside and they are acquitted of these charges. They shall be released forthwith,if got required any other case, 18. The appeals of accused Fateh Mohammad and of Insaf Ali are partly allowed. Their conviction under section 395 I.P.C. is altered to one under section 394 I.P.C. Looking to the fact that is a highway robbery in the city like Jodhpur, on the main street, I am of the opinion that sentence of 2 1/2 years rigorous imprisonment and a fine of Rs. 500/- in default of payment of which further rigorous imprisonment for two months to each of these accused persons shall meet the ends of justice. The conviction of these two accused persons is also altered from section 324/149 to section 324/34 I.P.C. and each of them is sentenced to undergo three month rigorous imprisonment. The substantive sentence under both the counts shall run concurrently. The accused be informed about the result of their appeals in jail.Appeals decided accordingly. *******