JUDGMENT 1. - This appeal is directed against the judgement and order dated 1st Sept., 1981, of the Additional Sessions Judge, Gangapur City, convicting the appellant under Section 395 and 397 I. P. C., and sentencing him to rigorous imprisonment for 5 years and a fine of Rs.500/- or in default further rigorous imprisonment for 5 months, and rigorous imprisonment for 7 years and fine of Rs.700/- or in default further rigorous imprisonment for 7 months, respectively. The two sentences have been ordered to run concurrently. 2. The case of the prosecution which resulted in the conviction and sentence of the appellant as afore mentioned is that, on April 15, 1980 at 8.00 p. m. he was one of the dacoits who committed a dacoity in the house of P.W. 4 Thandi. They are alleged to have been armed with deadly weapons including fire arms and sharp weapons and caused hurt to a number of persons in the course of commission of this crime. They decamped with silver and gold ornaments stolen from the house of P. W. 4 Thandi. 3. The F.I.R. in the case was lodged by Ramsahai, P. W. 1 the same night at 10.00, P. M. Bachhu, the present appellant surrendered in the court of the Judicial Magistrate, Karoli. on September 8, 1980. He was sent to the judicial lock-up the same day. He was produced before the Judicial Magistrate on September 10, then he was handed over to the police, It appears that after being detained for sometime by the police he was again sent to the Judicial Lock-up on September 10, 1980. A test identification was held in the jail premises on September 12, P.W.S. Ramjilal, Thandi Ram and Shriphool are alleged to correctly identified the appellant in the parade. However, Arjun and Choth Ram could not identify him. 4. In due course, the appellant along with one Mohar Singh, was sent up for trial to the Court of session. Both of them were tried by the Additional Sessions Judge, Gangapurcity on charges-punishable under Sections 397 and 395 I.P.C. The learned trial judge, recorded the evidence according to law and on that basis convicted and sentenced both Moharsingh and the present appellant. As already stated we are concerned here in this appeal only with the case of Bachhu, who has preferred this appeal. 5. As already stated we are concerned here in this appeal only with the case of Bachhu, who has preferred this appeal. 5. It will be seen from the judgment of the learned Additional Sessions Judge, that he convicted and sentenced the appellant on the basis of the evidence of P.Ws. Thandi Ram and Shriphool, who testified that the appellant was among the culprits who committed this dacoity and that they had earlier identified him in the tested identification parade held in the jail. The evidence of P. W. Ramjilal, who similarly claims to have correctly identified the appellant in the test identification was rejected by the learned trial judge on the ground that he was not present at the time of the commission of the dacoity and therefore, could not have possibly seen the appellant at that time. 6. Mr. Gupta, learned counsel for the appellant has read out in the Court the statements of the P. Ws. Thandi, Shriphool, S. I. Buniyad Ali (Investigating Officer), and Tak Chand (Judicial Magistrate), in an attempt to show that both Thandi and Shriphool could not have possibly seen the faces of the culprits at the time of the occurrence and that they identified the appellant in the test identification and thereafter, in the trial, merely because the appellant had been shown to them by the police on September 10, 1980 before he was sent to the judicial lock-up that day. The argument raised by Mr. Gupta, is not devoid of force. P.W. Tak Chand, the Judicial Magistrate, before whom the appellant surrendered on September 8, 1980 disposed that he had sent the appellant to jail that day without asking him or giving other instructions that he should keep his face covered. He further stated that after the appellant was produced before him on September 19, 1980 he handed him to police custody before sending him to the jail that day. It is some-what intriguing as to why the learned Magistrate, handed over the appellant to police custody on September 10, 1980, when he had already decided to send the appellant back to jail for the purpose of a test identification being held their later. The possibility of the witnesses having seen the appellant on September 10, J980 while he was in police custody before being sent to the Judicial Lock-up cannot be ruled out in this case. 7. The possibility of the witnesses having seen the appellant on September 10, J980 while he was in police custody before being sent to the Judicial Lock-up cannot be ruled out in this case. 7. P. Ws., Thandi Ram and Shriphool, admitted that it was too dark at the time of occurrence to see the face of any of the culprits and that, but for the light of gas lamps, they would not have been able to see the face of any of the culprits. Now the story that gas lamps were burning at the material time seems to be an after thought. Both Thandi and Shriphool in their statements under Section 161 Cr. P. C. had told the Investigating Officer that they had seen the faces of the culprits in torch light which the culprits according to them, had been flashing at the time of the commission of this crime. Both the witnesses has denied that they had made the statements to the police that the culprits carried corches and where flashing them. Their denial in that behalf does not appear to be trust-worthy. If they had told the Investigating Officer, that they had seen culprits in the gas lights, there is no reason why the I. O. should not have recorded this fact in the statements prepersed under Section 161 Cr. P. C. 8. P. W. Thandi Ram, who stated that some of the culprits were having their faces covered further stated that Mohar Singh, accused was going round with his face uncovered. P. W. Shriphool first stated that Moharsingh was having his face covered, and thereafter shifted his stand in as much as he stated in a later part of his deposition that Moharsingh, was not having any cover on his face. Now if one of the two persons who first beat Thandi Ram was having his face covered and if that person was not Moharsingh, it follows as a matter of necessary corollary that the man with the covered face was the appellant, assuming that he was among the culprits that evening If so, neither Thandi Ram, nor Shriphool could have possibly seen his face so as to be able to identify him later. 9. There is no other evidence on the record to connect the appellant with this crime, 10. 9. There is no other evidence on the record to connect the appellant with this crime, 10. In conclusion, therefore, I hold that there is no satisfactory evidence to prove that the appellant was among the culprits who committed dacoity at the house of P. W. 4 Thandi Ram, on April 15, 1980 at 8.00 p. m. He deserves the benefit of doubt. I would accordingly allow this appeal, set-aside the impugned order of conviction and sentence and instead of acquit the appellant. He is in Jail. He shall be released forthwith if not required to be detained in any other case. Sd/- K.S. Sidhu. J.Appeal allowed. *******