JUDGMENT 1. -This is an appeal filed by Bacchan Singh against the judgment of the Sessions Judge, Sri Ganganagar, convicting him under sections 458 and 392 read with section 397, I.P.C. and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo rigorous imprisonment for two months on the first count and on the second to undergo rigorous imprisonment for seven years. Both the substantive sentences of imprisonment were, however, ordered to run concurrently. 2. The incident that led to the prosecution of the appellant and two other co-accused, namely, Magha Singh and Om Prakash, who have been acquitted by the trial Judge, may be briefly stated as follows:- 3. On October 11,1974, Gauri Shanker lodged a verbal report of an incident of robbery with the police station Sadar Ganganagar. It was alleged by the informant that he was sleeping as usual on a cot in his room after taking his food at 8 00 p.m. His wife also was sleeping in front of the door of the room on a cot. The door of the room was opened and there was light of a lantern in the room. At about 1.30 a.m. Gauri Shanker woke up on account of a rattling sound. He saw that two persons were taking out articles from his box inside the room and one person was standing by the side of the cot of his wife having pressed the mouth of his wife with his hand. Gauri Shanker claimed to have asked the two persons as who they were. Thereupon, one of them, having a Gandasi with him, moved a few steps towards Gauri Shanker and asked the latter to continue to lie quietly and, in case, otherwise he would be killed Out of fear Gauri Shanker kept quiet but his wife began to raise a hue and cry probably under an impression that her husband had been killed by the thieves. Gauri Shankers mother and grand-mother also were sleeping outside the house. They also raised an outcry. Thereupon, one of the two persons who was taking out goods from the box, stole away one roamer wrist watch which was lying in the attached of Gauri Shanker and put the watch in his pocket and went away from there with one radio transistor of 3 bands. They also raised an outcry. Thereupon, one of the two persons who was taking out goods from the box, stole away one roamer wrist watch which was lying in the attached of Gauri Shanker and put the watch in his pocket and went away from there with one radio transistor of 3 bands. The other person having a Gandasi with him also followed his associate. On seeing them running, Gauri Shanker ran after them and caught hold of one of them by his leg while the latter was making an attempt to jump over the wall of the courtyard. The thief, the reupou, called his companions. The fourth thief, who was keeping watch outside the house, climbed over the wall, fired a shot from his pistol, jumped in the courtyard, lighted the torch and began to load his pistol. The fourth thief cried aloud and asked Gauri Shanker at the point of pistol to release his companions from his grip. Out of fear Gauri Shanker left the thief whose foot he had caught hold of. Thereafter both the thieves jumped over the wall and ran away. On hearing the cries of his wife, mother and grand-mother, a good number of inhabitants of the village came there and immediately ran after the thieves in different directions. The thieves threw away the radio transistor in the way. Gauri Shanker checked his goods and found one roamer wrist watch, one radio transistor and some currency-notes missing from his room. The thieves while running away from the place of occurrence left their goods, namely, one Chhaddar, one Gandasi, one battery and one Sabbal and two pairs of shoes. 4. The verbal report given by Gauri Shanker was reduced to writing by the police and usual investigation into the case was taken up. In the course of investigation, Suraj Prakash in charge of the police station Sadar, Ganganagar. arrested Om Prakash, Co-accused, on November 3, 1974 and recovered one pistol from a Phalla' situated in Killa No. 9 belonging to one Bhawan Das at the instance of Om Prakash and in consequence of his information recorded under section 27 of the Evidence Act. Likewise, on December 17 1974, Suraj Prakash Sharma arrested another co-accused, namely, Magha Singh vide arrest memo Ex. P. 29. Bacchan Singh appellant also was arrested by him on December 24.1974, vide memo of arrest Ex. P. 30. Likewise, on December 17 1974, Suraj Prakash Sharma arrested another co-accused, namely, Magha Singh vide arrest memo Ex. P. 29. Bacchan Singh appellant also was arrested by him on December 24.1974, vide memo of arrest Ex. P. 30. On the next day of his arrest, i. e. on December 25, 1974, Bacchan Singh while in the police custody voluntarily gave Suraj Prakash Sharma information that he had kept concealed one wrist watch having a chain of steel in his trunk which was lying in his residential kotha at Phatalabna. Shri Suraj Prakash Sharma recorded the above information in a Memo Ex. F. 31 and recovered the wrist watch from the trunk lying in the Kotha at the instance of Bacchan Singh appellant and in pursuance of his aforesaid information. The wrist watch was sealed properly in the presence of Motbirs. On December 24, 1974, Shri Suraj Prakush Sharma took specimen foot marks of Magha Singh- co-accused, in the presence of the Judicial Magistrate, Sri Ganganagar. Likewise, on January 6, 1975, specimen moulds of foot-marks of Bacchan Singh appellant also were got prepared in the presence of the Judicial Magistrate. The specimen moulds were sent to the Director, Finger-print Bureau, Jaipur, vide letter Ex. P. 34. Director, Finger-Print Bureau sent a report after examining the moulds which is Ex. P- 36. The wrist watch recovered at the instance of Bacchan Singh appellant was later on put up for identification in a test parade held by the Munsiff Magistrate, Sri Ganganagar, on January 6, 1975 which was correctly identified by Shri Gauri Shanker to be the same watch which was stolen away by the thieves from his attached. After his arrest Bacchan Singh appellant was put up for identification in a test parade held by Shri Tejpal Singh, Munsiff and Judicial Magistrate, Karanpur, on December 28, 1974. The appellant was correctly identified by Gauri Shanker in the test parade. Likewise Magha Singh, co-accused also was correctly identified by Gauri Shanker in a test parade held by the aforesaid Munsiff and Judicial Magistrate on December 24, 1974. 5. The police collected other necessary evidence in the case and eventually filed a charge-sheet against the appellant and two other co-accused Magha Singh and Om Prakash under sections 25 and 27 of the Arms Act in the court of the Munsif Magistrate, Sri Ganganagar. 5. The police collected other necessary evidence in the case and eventually filed a charge-sheet against the appellant and two other co-accused Magha Singh and Om Prakash under sections 25 and 27 of the Arms Act in the court of the Munsif Magistrate, Sri Ganganagar. The learned Judicial Magistrate, upon finding a prima-facie case exclusively triable by the Court of Sessions, committed the appellant and the two co-accused to the Court of the Sessions Judge, Sri Ganganagar, for trial under sections 397, 458, 392, T, P. C. and section 27 of the Arms Act. The appellant and the co-accused were charge-sheeted by the Additional Sessions, Judge, Sri Ganganagar, under sections 458, 380 and 397, I. P. C. Charges under sections 2.5 and 27 of the Arms Act also were framed against Om Prakash co-accused only. The Additional Sessions Judge, who later on became Sessions Judge, Sri Ganganagar, acquitted the two co-accused Magha Singh and Om Prakash of the charges framed against them and convicted and sentenced Bacchan Singh appellant in the manner indicated above. Aggrieved by his conviction and sentences the appellant has preferred this appeal. 6. I have carefully perused the record and heard Mr. B. R. Arora, learned counsel for the appellant, and Mr. H. N. Calla, Public Prosecutor for the State. Firstly, it has been contended on behalf of the appellant that the trial Judge committed an error in convicting the appellant for offences under sections 458 and 392 read with section 397, I. P. C. on the basis of evidence of identification, because visibility was poor on account of pitch darkness and the solitary witness, namely, Shri Gauri Shankar, who claimed to have identified the appellant, admitted in his deposition at the trial that the face of the appellant was covered with a cloth. It was further urged by the learned counsel for the appellant that the offence was alleged to have been committed during the hours of darkness and so the prevailing light was a matter of crucial importance as there was no adequate source of light sufficient to enable Gauri Shankar to see the face of the appellant in the court yard, i.e. Bakhal. 7. Mr. 7. Mr. H. N. Caila, Public Prosecutor, for the State, on the other hand, contended that the appellant flashed his torch before and asked Gauri Shankar to release the associates of the appellant from his grip and in the light of the torch complainant Gauri Shankar professed to have recognised the appellant from a short distance although the appellants face was covered with a piece of cloth. The Public Prosecutor further urged that a wrist watch proved to be stolen was recovered from a trunk of the appellant which was lying in his latha at the instance of the appellant and in consequence of his information recorded under section 27 of the Evidence Act and so this fact also led to a legitimate inference that the appellant was either a thief or a receiver of the stolen property. 8. I have considered the rival contentions mentioned above. At the outset, I may observe that the prosecution case against the appellant hinges on the evidence of identification and the recovery of the stolen wrist watch from his house at his instance and in consequence of his information, which he furnished to Shri Suraj Prakash Sharma, Investigating Officer while in the police custody. The evidence of identification can be accepted and relied upon only if the court is satisfied that at the time of the occurrence a witness has a fair opportunity of seeing the accused whom he did not know previously. In the instant case, Gauri Shankar is the only witness who claims to have identified the appellant at the time of occurrence. Hence, it has to be ascertained how' much weight is to be attached to his evidence. Gauri Shankar PW/6 stated in his deposition that the appellant had fired a shot at him and that his face was covered with a piece of cloth. Gauri Shankar was cross-examined on this point of identification of the appellant. Hence, it has to be ascertained how' much weight is to be attached to his evidence. Gauri Shankar PW/6 stated in his deposition that the appellant had fired a shot at him and that his face was covered with a piece of cloth. Gauri Shankar was cross-examined on this point of identification of the appellant. In his cross-examination he made the following admissions:- " eqyfte us fd ftlus esjs ij fiLrkSy yxkbZ eaqg yisV j[kk Fkk exj mldk psgjk vPNh rjg utj vkrk FkkA eSaus ml eqyfte dk gqfy;k mez jax dqN Hkh viuh fjiksVZ esa fy[kkok;kA vkSj u gh iqfyl c;ku esa fy[kok;kA pwafd vU/ksjk Fkk blfy;s esa eqyfte dh dksbZ [kkl pht mlds psgjs dh eSa ugha ns[k ldkA ;g dguk lgh gS fd xksyh pyus dh ?kcjkgV ls eSa eqyfte dk psgjk ugha ns[k ik;k eSaus mldk psgjk ns[kk og Hkh ,d lSd.M gh ns[kk FkkA " It appears from the evidence of Gauri Shankar that the robbery was committed during the hours of darkness because he clearly admitted in his cross-examination that although there was light of a lantern in his room, but there was pitch darkness outside the room- His admission is as follows. " fpeuh vyekjh esa j[kh gqbZ Fkh ;k mldh jks'kuh dejs esa FkhA ckgj jkr vU/ksjh FkhA dkQh vU/ksjh FkhA dkQh vU/ksjh jkr FkhA " Curiously enough, Gauri Shankar did not mention about any source of light at the place outside his room where he professed to have identified the appellant. Apart from this, he frankly stated that the face of the appellant was covered with a piece of cloth and he identified him by looking into his face for a second only. In view of these facts and circumstances, I have no hesitation in holding that the visibility was poor due to darkness and owing to absence of adequate source of light and on account of the face of the miscreant having been covered with a piece of cloth. There is no presumption of the existence of any source of light that has always to be proved by the prosecution. Gauri Shankar did not say in his deposition that the appellant flashed his torch at the time when he asked Gauri Shankar to release his companion s from his grip and that in the light of the torch or in the light of lantern he recognised the appellant by face. Gauri Shankar did not say in his deposition that the appellant flashed his torch at the time when he asked Gauri Shankar to release his companion s from his grip and that in the light of the torch or in the light of lantern he recognised the appellant by face. Consequently, I am of the view that the trial Judge went wrong in placing reliance upon the evidence of identification of the appellant given by Gauri Shankar before him. In my opinion, chances of error in identifying the appellants could not be eliminated altogether in the peculiar facts and circumstances of this case. The appellant, therefore, could not be convicted under sections 458 and 392 read with section 397, I. P. C, on the basis of the evidence of identification. 9. The Public Prosecutor further relied upon the evidence of footprints of the appellant and contended on its strength that it is a corroborating circumstance to establish the identity of the appellant as a culprit. The above contention has no force, because the features suchas size, depth, contour etc. are usually taken as the basis of an inference which may apply even in combination to many individuals. It is no doubt true that the Director, Finger Prints Bureau compared the specimen foot-prints of the appellant with the impressions of the foot-prints which were found near about the place of occurrence and came to a conclusion that the two impressions were identical and of one and the same person, but in the absence of any positive evidence relating to the identity of the appellant as perpetrator of the crime, the evidence in regard to his foot-prints alone is not sufficient to hold him guilty of the charges under sections 458, 392 read with section 397, I. P. C. 10. The Public Prosecutor relied upon the evidence of discovery of a wrist watch which was proved to be stolen property from the attached of Gauri Shankar and contended that presumption of graver offences under sections 458, 392 and 397, I. P. C. can legitimately be drawn against the appellant at whose instance and in consequence of whose information recorded under section 27 of the Evidence Act, the wrist watch was recovered from a trunk lying in his residential house. The learned counsel for the appellant, on the other hand, contended that no such presumption can reasonably be drawn because the prosecution could not lead satisfactory evidence to prove the recovery of the wrist watch from the exclusive possession of the appellant. I have given my earnest consideration to the referred to above contentions. Under illustration (a) to section 114 of the Evidence Act, a presumption of theft or record of stolen property may be drawn if soon after the occurrence of the theft an accused is found in possession of stolen property. Drawing of such a presumption, however, depends upon facts and circumstances of each case. In the instant case, it is proved by the evidence of Suraj Prakesh Sharma Investigating Officer that on the next day of his arrest i. e. on December 25, 1974, the appellant while in the police custody, gave him an information that he had kept concealed one wrist watch having golden case and a dim white dial with steel chain in his trunk which was lying in his residential Kotha and that he was prepared to get it recovered at his instance. Shri Suraj Prakash Sharma recorded the above information in a memo Ex. P. 31 and, later on, recovered the wristwatch from the trunk of the appellant at the latters instance and in consequence of his information recorded under section 27 of the Evidence Act. The wrist watch was sealed properly at the spot and, later on, it was put up for identification in a test parade heed by the Munsiff Magistrate, Shri Ganganagar, where it was alleged to have been correctly identified by Gauri Shanker to be the same wrist watch which was stolen away from his attachee. Gauri Shanker identified the wrist watch in the trial court also to be his watch which was stolen away from his attachee. The testimonies of Shri Suraj Prakesh Sharma and Gauri Shanker on this point have not been shaken at all in cross-examination and there is no reason to disbelieve them. The learned counsel for the appellant vehemently argued before me that Bacchan Singhs father-in-law and his brother, used to live in the same house in which was recovered and so it cannot be safely held that the wrist watch was found in exclusive possession of the appellant. The learned counsel for the appellant vehemently argued before me that Bacchan Singhs father-in-law and his brother, used to live in the same house in which was recovered and so it cannot be safely held that the wrist watch was found in exclusive possession of the appellant. The above contention has on force, because there is no material on the record to show that the Kotha in which the trunk was lying and from which the wrist watch was recovered was occupied by the father-in-law and brother also. The appellant has led no evidence in this behalf. In his statement recode under section 313, Cr. P. C. he denied the factum of recovery of the wrist watch from his residential Kotha at his instance and in pursuance of his information which he was alleged to have furnished to Shri Suraj Prakash Sharma while in the police custody. Inder Singh PH 13 stated in his deposition that the kotha was a kham kotha belonging to Bachan Singh where the Station House Officer and Pachan Singh were standing at the time of the recovery. This witness, however, turned hostile to the prosecution case in his cross-examination, but he admitted to have signed the recovery memo Ex- P. 28. Hence, it is proved by the evidence of Shri Suraj Prakash that the wrist watch was recovered from the kotha of the appellant (wherein it was lying in a trunk) at the instance and in consequence of his information recorded under section 27 of the Evidence Act. The appellant could not afford any reasonable explanation as to how he came into possession of this wrist watch, which was proved to be stolen property by the evidence of Gauri Shanker. His mere denial of recovery of the wrist watch from his kotha at his instance and in pursuance of his information is not sufficient to rebut the cogent evidence of Shri Suraj Prakash Sharma, Investigating Officer. 11. The learned counsel for the appellant further argued that the prosecution could not prove by the evidence of the Munsiff Magistrate that the wrist watch was put up in a test identification parade after its recovery and was correctly identified by Gauri Shanker in the parade to be the same watch which was stolen away from his attachee. 11. The learned counsel for the appellant further argued that the prosecution could not prove by the evidence of the Munsiff Magistrate that the wrist watch was put up in a test identification parade after its recovery and was correctly identified by Gauri Shanker in the parade to be the same watch which was stolen away from his attachee. The above contention of the learned counsel for the appellant has no substance, because even a total failure on the part of the prosecution to hold a test identification parade does not render inadmissible the evidence of identification of the wrist watch in the trial court. In the instant case, the evidence of Gauri Shanker relating to the ownership and identify of the wrist watch can be safely relied upon without any corroboration in the form earlier test identification proceedings. The purpose of a prior test identification parade of an article is to test and strengthen the sworn testimony of a witness in the court as to the identity in the court of that article, but in a case where the sworn testimony of a witness in a court as to the identity of a particular article is trust-worthy and can safely be relied upon without any other corroboration. it is not necessary to look for corroboration in the from of an earlier test identification proceedings, especially when the accused does not claim that article to be his property and denies the factum of recovery there of at his instance from his possession. Consequently, I have no hesitation in holding that the trial court rightly held upon evidence that a wrist watch proved to be stolen away from the attachee of Gauri Shanker was later on recovered from the residential Kotha of the appellant at the latters instance and in consequence of his information which he furnished to Shri Suraj Prakash Sharma, investigating Officer, while in the police custody. 12. The next question that remains to be decided is whether the appellant, who was found in possession of the stolen wrist watch, is either the thief or had received the watch knowing it to be stolen. The wrist watch was recovered from the kotha of the appellant on December 25, 1974, i. e. after 21/2 months of the occurrence. 12. The next question that remains to be decided is whether the appellant, who was found in possession of the stolen wrist watch, is either the thief or had received the watch knowing it to be stolen. The wrist watch was recovered from the kotha of the appellant on December 25, 1974, i. e. after 21/2 months of the occurrence. The presumption that ordinarily is to be drawn is that the appellant has received or retained the wrist watch knowing it to be stolen and not that he has stolen himself. Consequently, I am of the view that the appellant can be held guilty under section 411, I. P. C. only on the basis of unexplained recovery of the stolen wrist watch belonging to Gauri Shanker from his residential kotha at his instance and in consequence of his information recorded under section 27 of the Evidence Act. 13. As regards sentence under section 411, 1. P. C. it may be observed that the appellant has already served out rigorous imprisonment for about one year as he was convicted by the trial Judge on May 16, 1977 and his sentence was suspended by this court on May 12, 1978. In my opinion, the ends of Justice would be met if he is sentenced for the offence under section 411,1. P. C. to the term already undergone by him. 14. The result of the above discussion is that I partly accept the appeal filed by Bachhan Singh and while setting aside his convictions and sentences under sections 458 and 392 read with section 397, I. P. C. and acquitting him of the said charges, convict him for the offence under section 411,1. P C. and sentence him to the term already undergone by him. The appellant is on bail. He need not surrender to his bail bonds, which are hereby discharged.Appeal partly allowed. *******