JUDGMENT 1. - The appellants, Netrapal, Pradeep Kumar, Sonpal, Ram-singh, Ramesh son of Shiv Singh, Ramesh son of Dumberlal and Shiv Sahai, along with one Ram Swaroop, were tried by the learned Sessions Judge, Bharatpur, of the charges under Sections 395, 397, 411 and 120(B) IPC. By his judgment and order, dated, 31st March, 1981, the learned judge acquitted Ram Swaroop, and convicted and sentenced the appellants as under : (a) Pradeep Kumar, Shiv Sahai, Ram Singh Rigorous imprisonment for four years and a fine of Rs. 1,000/- or in default further rigorous imprisonment for six months each, under Section 395 IPC. (b) Netrapal, Ramesh S/o, Dumberlal, Ramesh S/o Shiv Singh Rigorous imprisonment for seven years and a fine of Rs. 1,000/- or in default further rigorous imprisonment for six months each, under Section 397 IPC read with Section 395 IPC. (c) Son Pal Rigorous imprisonment for two years and a fine of Rs. 500/- or in default rigorous imprisonment for three months under Section 411 IPC. 2. The case of the prosecution which resulted in the conviction and sentence of the appellants as aforementioned may be shortly stated here. At about mid night between March 20/21, 1979, about 20 persons entered the house of the complainant Purshotam Lal Sharma, situate in village Chhoti Bhantdor District Bharatpur. They beat the inmates of the house, deprived them of their ornaments, watches and valuable clothing's and decamped with the booty in the darkness of the night. On their way back, they looted workmen of Birla Factory and Dalmia Dairy and deprived them of their watches and money. 3. The report of the occurrence was lodged with the police by Purshotam Lal Sharma on March 21, 1979, at 6 A.M. The police took up the investigation, but were not able to arrest any of the culprits till April 9, 1979. it is alleged that Pradeep Kumar and Netrapal were arrested by the Uttar Pradesh Police at Badayun in some other case on the even date. Each of them was found carrying a bag. The bag carried by Pradeep Kumar contained amongst other articles (a) a men's and women's watch, a warm shawl, one piece of sari, one piece of dhoti and certain other clothing's. Similarly, the bag carried by Netrapal was found containing two dhotis, a sari and other articles. Kalicharan (PW 17), who arrested the two culprits, prepared a joint memo, Ex. The bag carried by Pradeep Kumar contained amongst other articles (a) a men's and women's watch, a warm shawl, one piece of sari, one piece of dhoti and certain other clothing's. Similarly, the bag carried by Netrapal was found containing two dhotis, a sari and other articles. Kalicharan (PW 17), who arrested the two culprits, prepared a joint memo, Ex. p. 26 of the articles recovered from them The Sevar Police who were seized of the investigation in the present case acquired the custody of Pradeep Kumar and Netrapal from the Uttar Pradesh authorities in due course. 4. Shiv Sahai, another accused who was arrested in Uttar Pradesh, was transferred to the Sevar Jail, Bharatpur on April 8, 1979 Ram Singh, surrendered, himself before Chief Judicial Magistrate, Bharatpur on May 5, 1979. The police conducted search of the house of Shiv Sahai on June 19, 1979 and recovered some stolen property, including a sari and a bushirt in that search and prepared the search memo Ex. P. 39. Ramsingh is said to have made a disclosure statement to the police during the investigation on May 9, 1979, to the effect that he had concealed a pair of gold earring and a watch in his house and that he could get these articles recovered from there. The statement was recorded as Ex. P. 38. It is alleged that a pair of gold earrings was recovered from his house in consequence of the said information and taken into possession vide memo Ex. P. 29. 5. The prosecution story further goes that while in police custody on May, 9, 1979, Sonpal accused made a statement, Ex. P. 37, that he had concealed some stolen property consisting of a tericot shirt, watch, chain and gold ring in his house and that he could get them recovered from there. This property was recovered by the Investigating Officer from the house of the Sonpal in consequence of the said information and taken into possession vide Ex. P. 28 on May, 10, 1979. 6. Ramesh s/o Dumberlal was arrested by police on July 11, 1979. This property was recovered by the Investigating Officer from the house of the Sonpal in consequence of the said information and taken into possession vide Ex. P. 28 on May, 10, 1979. 6. Ramesh s/o Dumberlal was arrested by police on July 11, 1979. It is alleged that he was put up for test identification on June 18, 1979, and was correctly identified by five witnesses, namely Harisingh, Kanta Prasad, Mayadevi, Basmati and Nirmala, as one of the miscreants, who had committed the dacoity in the house of Purshotam Lal Sharma on the night between March 20 and 21, 1979, 7. Ramesh son of Shiv Singh was also arrested by the Uttar Pradesh police in some other case and was being detained in the lock-up at Badayun. He was transferred from there to Sevar Jail on April 17, 1979. He was put up for test identification on April 21, 1979. He was correctly identified by PWs Kanta Prasad and Mayadevi as one of the miscreants who committed this crime. PW Nirmala Devi another witness was not able to identify him in the test identification. 8. Thus, the evidence which the investigating agency was able to collect in respect of Ramesh son of Dumber Lal and Ramesh son of Shiv Sahai consisted only of their alleged identification in the test identification parade mentioned above. Similarly, the only evidence collected against Sonpal consisted of the alleged recovery of stolen property from him. He could not be correctly identified by any of the witnesses in the test identification. So far as Pradeep Kumar, Shiv Sahai, Ram Singh and Netrapal are concerned, the investigating agency was able to collect, in addition to alleged recovery of stolen property from, the evidence as to their alleged identification during the test identification. 9. During the trial, the prosecution examined PWs Harisingh, Kanta Prasad, Mayadevi, Basmati, Nirmala Devi, Mohan Kumar and C.P. Singh as witnesses relating to the alleged identification of accused Pradeep Kumar, Shiv Sahai, Ramsingh, Netrapal, Ramesh son of Dumber Lal and Ramesh son of Shiv Sahai. It also examined Kanta Prasad, Mayadevi, Basmati, Nirmala Devi, Purshotam Lal Sharma, Dinesh Kumar, Kalicharan, Banshidhar, Rajendra Kumar and Mohan Kumar as witnesses relating to the recovery and identification of the alleged stolen property. 10. By and large, these witnesses supported the prosecution case as narrated above. It also examined Kanta Prasad, Mayadevi, Basmati, Nirmala Devi, Purshotam Lal Sharma, Dinesh Kumar, Kalicharan, Banshidhar, Rajendra Kumar and Mohan Kumar as witnesses relating to the recovery and identification of the alleged stolen property. 10. By and large, these witnesses supported the prosecution case as narrated above. Their evidence was then put to the accused to enable them to explain it. The accused denied their participation in the commission of this dacoity. They also denied recovery of any stolen property from them. As for their identification by some of the witnesses in the test identification, Pradeep Kumar, Shiv Sahai, Ram Singh, Netrapal, Ramesh son of Dumber Lal and Ramesh son of Shiv Singh protested that they had already been shown to the witnesses and thus the fact that they were picked up correctly by some of the witnesses at the test identification during the identification cannot be used as evidence against them. 11. No evidence in defence was produced by any of the accused. 12. Relying on the evidence of recovery of stolen property from Sonpal, the trial judge came to the conclusion that he had received the stolen property knowing it to be stolen and therefore he was guilty of an offence punishable under Section 411 IPC. Consequently Sonpal was convicted and sentenced as stated at the very out set of this judgment. 13. Ramesh son of Dumber Lal was convicted and sentenced under Section 397 and 395 IPC on the basis of his alleged identification in the trial, as corroborated by similar identification earlier in the test identification by PWs. Harisingh, Kanta Prasad, Mayadevi and Basmati. Ramesh son of Shiv Singh was convicted and sentenced on the basis of similar identification by PWs Kanta Prasad and Mayadevi. 14. As for Pradeep Kumar, Shiv Sahai, Ram Singh and Netrapal they were convicted and sentenced on the basis of two fold evidence consisting of identification in the trial as corroborated by similar identification during the investigation and recovery of stolen property. 15. After examining the evidence and hearing both sides, I am of opinion that the evidence relating to identification of Pradeep Kumar, Shiv Sahai, Ram Swaroop, Ramesh son of Dumber Lal and Ramesh son of Shiv Singh cannot be safely relied upon. It will be seen that the night of occurrence was admittedly a dark night. 15. After examining the evidence and hearing both sides, I am of opinion that the evidence relating to identification of Pradeep Kumar, Shiv Sahai, Ram Swaroop, Ramesh son of Dumber Lal and Ramesh son of Shiv Singh cannot be safely relied upon. It will be seen that the night of occurrence was admittedly a dark night. There was no light available in the house of the complainant at mid-night when the crime was committed. No description of any of culprits is given either in the FIR or in the statement of witnesses recorded under Section 161 Cr, P.C. It is not indicated in the FIR as to how the witnesses had seen the face of any of the culprits in the darkness of that night. It was only in the statement of some of the prosecution witnesses, recorded under Section 161 Cr. P.C. that mention of one of the culprits carrying a torch was made for the first time. A number of inmates of the house of Purshotam Lal Sharma admitted that some of the culprits were having their faces covered at the time of commission of the crime. PWs. Mohan Lal, Mahendra Kumar, Dinesh Kumar, Sukkhan and Ashwani Kumar, the workmen of Birla Factory and Dalmia Dairy, who are alleged to have been robbed by the miscreants shortly after they left the complainant's house on their way back, stated with one voice that all the culprits were having their faces covered at that time and that they would not therefore be able to identify any of them. That being so, it is difficult to believe the inmates of the house of Purshotam Lal Sharma that some of the culprits were having their faces uncovered at the time of the commission of the crime and that therefore they were able to see their faces in torch light. 16. Sizing up the evidence of all these witnesses including the aforesaid workmen, I find that it is more reasonable to believe the defence that none of the culprits was having his face uncovered at the time of the occurrence and that, no light was available to enable the witnesses to see the face of any of the culprits at that time. 17. 17. Ramesh son of Dumber Lal accused complained to Mohan Kumar (PW 14) the Magistrate who held the test identification that he had been shown to the witnesses earlier and his objection in that behalf was duly recorded by the Magistrate. There is strong possibility of this accused having been shown to the witnesses earlier. PW Kalicharan Sharma, the Investigating Officer, admitted that he had filed application Ex. P. 13 for identification of this accused and that the Magistrate had fixed July 13, 1979 as the date for holding the test identification. He also admitted that the scheduled test identification had not been held on July 13, 1979 and that instead it had been held on July 17, 1979. PWs. Kalicharan and Mohan Kumar were unable to render any satisfactory explanation for postponing the test identification. They pleaded ignorance of any of the witnesses called for identifying the accused on July 13, 1979 had reported his appearance that day or not. This indicates the possibility of the witnesses having come for identification on July 13, 1979, and having been sent back to enable them to equip themselves better regarding the description of the culprits so that they may not make mistake in respect of their identification in the test parade. It is surprising in the circumstances that, on July 17, 1979, when the test identification of Ramesh Chand was actually held, the learned Magistrate did not interrogate any of the witnesses to rule out the possibility of their having seen the culprit between the date of the commission of the crime and July 17, 1979. 18. Out of the three witnesses, who came to identify Ramesh son of Shiv Singh in the test identification parade, one, namely, Nirmala was not able to identify him. The other two, namely Kantaprasad and Mayadevi, a married couple, admitted that they mostly remained locked up in a room and had hardly any opportunity of seeing Ramesh son of Shiv Singh. It is difficult to place any reliance on their evidence regarding identification, especially when, as already seen, there was no light in the house to enable them to see from their room as to what was going on outside the room. 19. Pradeep Kumar, Shiv Sahai and Netrapal were identified by one witness each. PW. Nirmala alone was able to identify Pradeep Kumar. PW Mayadevi identified Shiv Sahai. PW. Kanta Prasad identified Netrapal PWs. 19. Pradeep Kumar, Shiv Sahai and Netrapal were identified by one witness each. PW. Nirmala alone was able to identify Pradeep Kumar. PW Mayadevi identified Shiv Sahai. PW. Kanta Prasad identified Netrapal PWs. Kanta Prasad and Mayadevi claim to have correctly identified Ram Singh. As already stated Kanta Prasad and Maya devi who mostly remained locked up in a room could not have possibly seen Ram Singh, Shiv Sahai and Netrapal. No reliance can be placed on identification evidence of this nature. 20. All said in done, I am not prepared to place reliance on the evidence regarding the identification of Pradeep Kumar. Shiv Sahai, Ram Singh, Netrapal, Ramesh son of Dumber Lal and Ramesh son of Shiv Singh in the trial, for the simple reason that the corroborating evidence of test identification is of no value. 21. Turning now to the evidence of alleged recovery of stolen property from the accused, it may be stated here that Mr. Dhankar learned counsel for Sonpal and Mr. N.C. Chibar learned counsel for Pradeep Kumar, Shiv Sahai Ram Singh and Netrapal frankly admitted that there is enough evidence on the record to prove that various items of stolen property involved in this case were recovered from these accused and that therefore it would be legitimate to presume that they received the said property knowing it to be stolen I am myself satisfied from the evidence of record that Pradeep Kumar, Shiv Sahai, Ram singh, Netrapal and Son Pal are guilty of the offence of receiving stolen property knowing it to be stolen punishable under Section 411 IPC. It will not however, be correct to record conviction against any of these accused under Section 395 and 397 IPC, merely because some stolen properly was recovered from them. 22. For all these reasons, therefore, I set aside the order of conviction passed against Pradeep Kumar, Shiv Sahai and Ram Singh under Section 395 IPC, and against Netrapal, Ramesh son of Dumber Lal and Ramesh son of Shiv Singh under Section 397 read with Section 395 IPC. Instead, I convict Pradeep Kumar, Shiv Sahai, Ram Singh and Netrapal under Section 411 IPC. They have already remained in detention for varying periods, extending over two years each. It will therefore meet the ends of justice if their sentence is reduced to the period of imprisonment already under gone by each of them. 23. Instead, I convict Pradeep Kumar, Shiv Sahai, Ram Singh and Netrapal under Section 411 IPC. They have already remained in detention for varying periods, extending over two years each. It will therefore meet the ends of justice if their sentence is reduced to the period of imprisonment already under gone by each of them. 23. There is no evidence at all of the commission of any crime by Ramesh son of Dumber Lal and Ramesh son of Shiv Singh. They are, therefore, acquitted. 24. Sonpal's conviction under Section 411 IPC is affirmed. He was sentenced by the trial court to rigorous imprisonment for three months. He must have already under gone the entire period of sentence awarded to him and released from Jail by now. 25. In conclusion, I direct that all the appellants will be released forthwith if they are not required to be detained in any other case.Appeal Partly Allowed. *******