JUDGMENT 1. - This appeal is directed against the judgment of the learned Additional Sessions Judge, Kishangathbas camp Behror, dated 28-1-1982, whereby the appellants have been found guilty under Sections 395 and 397 Indian Penal Code Under Section 395 IPC, they have been sentenced to ten years rigorous imprisonment and a fine of Rs. 500/-. In default of payment of fine to fur,he.r undergo a rigorous imprisonment of one year. Under Section 397 IPC, 10 years rigorous imprisonment. 2. The prosecution story is that Ishaq Meo lodged a first information report at the police station Kishangarh Bas on 2-4-80 that on the previous night at about 1 p. m, Rahim Bux cattle to his village and told him that in the dhani of Ghamman certain persons have taken away the goods of Gliamman after giving him beating. When the villagers went to the house of Ghamman, it was found that Ghamman and Modla were lying injured in front of their house and were unconscious. When the villagers went into the poll of the house they found Swarupi his daughter and his son Fazru closed in the room. They were taken out from the room. The goods of Ghamman were found scattered and the locks of the boxes were found broken. When the inmates came to their senses they told that Modla was slerping outside the house on Chabutra in the night at about 12. 30 P. M. He found that three persons were standing there and on an enquiry one of them raised his lathi and rest of the two gave him beating. Thereafter Ghatnrnan came from inside and was also beaten by those persons. Thereafter certain persons went inside the house, gave beating to other inmates and took-away the ornaments after closing Swaroopi, Majri and Fazru in a room. On this report a case under Sections 458, 380, 34 Indian Penal Code was registered and after investigation the case was converted into 395 and 397 IPC. The police started investigation of this case. 3. During the investigation of this case the police arrested Noor Khan, Shur Khan, Kale Khan, Ratan Lal and Baowari Lal. On the information under Section 27 of the Evidence Act given by Noor Khan, the police recovered some ornaments. Similary on the information of the accused Banwari and Ratan Lal some ornaments were recovered. 3. During the investigation of this case the police arrested Noor Khan, Shur Khan, Kale Khan, Ratan Lal and Baowari Lal. On the information under Section 27 of the Evidence Act given by Noor Khan, the police recovered some ornaments. Similary on the information of the accused Banwari and Ratan Lal some ornaments were recovered. Identification of the recovered ornaments was done and the ornaments were identified by Ghanman, Swarupi and Modla. Identification of the accused persons Ratan Lal, Noor Khan and Banwari was also conducted and Ghanman, Swarupi and Modla have identified these accused persons. After completing the investigation the police challaned five persons, three petitioners and Sher Khan and Kaleknan. After recording evidence and hearing both parties, learned Additional Sessions judge acquitted Sherkhan and Kale Khan for the offences charged against them. He found guilty the three petitioners under section 395, 397 Indian Penal Code and convicted them as mentioned above. 4. Learned counsel for the petitioner has argued that no case has been established under section 397 IPC. The allegation of the prosecution witnesses that they were given beating by the accused persons and they received injuries has not been substantiated by examining the doctor. Their injuries were not examined by any medical doctor. No injury report has been submitted in the Court. The Medical Officer has not been examined by the prosecution to prove that the witnesses Ghanrtnan, Swarupi, Modla and other initiates were given beating by the petitioners and they received injuries. So unless it is proved that the accused persons gave beating to the inmates of the house at the time of dacoity, a case under Section 397 is not proved. The injuries of the victims of the dacoity are to be proved. As there is no proof about the injury to the victims, the learned Sessions Judge has committed error in finding them guilty and convicting them under Section 397 IPC. 5. I, therefore, hold that conviction and sentence of the petitioners under section 397 Indian Penal Code is bad and they are acquitted from this offence. 6. They have been charge-sheeted under section 395 IPC. There is no eye-witness to this incident. The whole case depends on the circumstantial evidence. 5. I, therefore, hold that conviction and sentence of the petitioners under section 397 Indian Penal Code is bad and they are acquitted from this offence. 6. They have been charge-sheeted under section 395 IPC. There is no eye-witness to this incident. The whole case depends on the circumstantial evidence. The evidence is with regard to the identification of the accused persons and the evidence of that the recovery of the ornaments from the possession and at the instance of the accused persons. The point to be seen is whether the evidence with regard to the recovery of ornaments and identification of the accused is believable or not. 7. In the first information report, it was not mentioned that the dacoits were identified at the time of committing this offence. It is not alleged that dacoits were having 'dhatas' coveting their faces. They came with open f ace. There is no evidence that at that time there was light in the house of Ghamman. The contention is that the accused persons were identified in the torch-light which they were throwing there and also in the moon light. Learned counsel for the petitioners has argued that it is not possible to identify the accused parsons in the moon light. Modla was sleeping outside on the Chabutri but other inmates were inside the home and the room. As such there is no possibility of moon- light inside the house. It was also argued that the story of torch-light is also unbelievable It is not possible that the dacoits will throw light by the torches on the faces of one another. Believing that they were having torches with them. they will use torch-light in such a way so that they can only identify the articles but they will not use the torch-light in such a way as to give a chance for other persons to recognise them. When the dacoity is committed the person will try to hide his face, so the story that the dacoits were identified in the torch-light is unbelievable. 8. Learned counsel for the petitioner has cited the case of Matka Harprasad v. State of Rajasthan (1979 Cr. L. R. (Raj.) 7) and this is the similar case in which the dacoits were identified in the torch light. While deciding this case, Hon'ble Sidhu. 8. Learned counsel for the petitioner has cited the case of Matka Harprasad v. State of Rajasthan (1979 Cr. L. R. (Raj.) 7) and this is the similar case in which the dacoits were identified in the torch light. While deciding this case, Hon'ble Sidhu. J. has observed --The story these witnesses had seen the faces of the culprits in the torch light carried by some of the culprits is difficult to believe. Assuming for a moment that the dacoits were carrying torches as alleged, they would use them for spotting the inmates of the house, ornaments and the cash which they wanted to steal. They were least likely to flash the torches on the faces of one another." 9. Similar is the position in the present case. The petitioners were identified by the witnesses at the time of committing dacoity in the torch light. This story is not believable as mentioned above and also observed by Hon'ble Sidhu. J., it is not possible that the culprits will throw light of the torch on the faces of each other nor to give chance to in ties to identify them. They will use the torch light only for spotting the persons in the house and searching the ornaments and the cash which they want to take away. As such the learned Sessions Judge has erred in believing this aspect that the petitioners were identified in the torch light. I do not agree with this conclusion arrived at by the learned Additional Sessions Judge. It is not said that the petitioners were known to the witnesses so their identification was only on account of moon light and torch-light. In both circumstances, this story is unbelievable. It would be relevant to mention that along with these petitioners, Kale Khan and Sher Khan were there in committing the dacoity, if the witnesses have recognised or identified the petitioners then why Kala Khan and Slier Khan were not identified by them. No identification of Kale Khan and Slier Khan was done by the police. These two accused persons were only identified by the witnesses in Court and the learned Addl. Sessions Judge did not believe this identification and ultimately acquitted bath these persons. When witnesses could not identify Kale Khan and Sher Khan, it is not probable that they will identify the petitioners in the torch light. 10. These two accused persons were only identified by the witnesses in Court and the learned Addl. Sessions Judge did not believe this identification and ultimately acquitted bath these persons. When witnesses could not identify Kale Khan and Sher Khan, it is not probable that they will identify the petitioners in the torch light. 10. One fact was brought to my notice that accused Ratan Lal was arrested on 16-6-1980 but his identification parade was done on 7-6-1980. It means that the identification parade with regard to Ratan Lal was done before his arrest. I do not understand how it happened. Unless the person is arrested request cannot be made to the Magistrate for holding identification parade. In this case, identification parade was done before the accused were arrested. This creates doubt in the prosecution story. 11. I have seen the identification memo Ex. P. 16 According to this memo Fx. P. 16, the parade of three accused persons was conducted. The persons mixed at the time of identification parade, have been shown in this memo. The jail inmates were mixed at the time of identification parade. It means that for conducting the identification of three persons only ten outsiders were mixed. This number is very small. The statement of the Munsif Magistrate, Laxmi Narain, P. W. 12 was also perused. He has stated that during the identification parade three lines were formed and with each accused petitioner ten persons were mixed. It means that in all thirty persons were mixed, at the time of identification parade. This statement is not corroborated with the memo Ex. P. 16. In this memo he has mentioned that ten jail inmates were mixed with these three accused persons and they were asked to stand in one line. Thus the statement given by Laxmi Narain Magistrate is contradicted by the Memo Ex. P. 16, which was prepared by himself This creates doubt whether the identification parade was done fairly or not. To sum up, I agree with the arguments of the learned counsel for the petitioner that the story of identification of the accused persons is unbelievable and the identification parade is also false. 12. Certain ornaments were said to have been recovered at the instance of the petitioners. It is said that Noor Mohammad gave information under section 27 of the Evidence Act, which is Ex. 12. Certain ornaments were said to have been recovered at the instance of the petitioners. It is said that Noor Mohammad gave information under section 27 of the Evidence Act, which is Ex. P. 29 that he has sold some ornaments to a Sarraf at Alwar. He was then taken to the shop of Sarraf and on his information some ornaments were recovered vide Ex. P. 30 from the shop of Jugal Kishore Sarraf P. W. 9. Whether the ornaments were sold to Jugal Kishore by the accused Noor Khan is disputed by learned counsel for the petitioner. The statement of Jugal Kishore was brought to my notice. Jugal Kishore P. W. 9 has stated in his statement that one person named Noor Khan had sold these ornaments to him who came to his shop along with Kalu Khan. He does not identify Noor Khan. In Court also he did not identify Noor Khan petitioner. According to him there is entry about the charges of these ornaments in Bahi. This entry is dated 2-4-80 and on the first page of the Bahi at item No. 1. After this entry there are so many entries of purchase of ornaments from other persons. According to Jugal Kishore, he got the signatures of Noor Khan on this entry. The signatures on the Bahi of Jugal Kishorc as of the accused Noor Khan, has not been proved by the prosecution, It was the duty of the prosecution to prove the signatures of accused Noor Khan on the Bahi of witness Jugal Kishore. Apart from this there are no signatures of the persons from whom Jugal Kishore had purchased ornaments. Their entries are in roan but no signatures were obtained from those persons. Where was the necessity of obtaining signatures of Noor Khan on the entry in the Bahi. So it seems that the entry in Bahi is made out one. It was prepared later on and I do not believe this part of the story of the prosecution. Learned Additional Sessions judge has committed error in believing the prosecution on this point. 13. I have also gone through the identification memos of articles Ex. P. 20 to 22. Modla, Ghamman and Swarupi have identified these articles. The way in which the identification was conducted, the number of articles mixed with the recovered articles, shows that this identification of articles is not fair. 13. I have also gone through the identification memos of articles Ex. P. 20 to 22. Modla, Ghamman and Swarupi have identified these articles. The way in which the identification was conducted, the number of articles mixed with the recovered articles, shows that this identification of articles is not fair. The witnesses have no identification mark on their ornaments. They did not say that on account of this particular mark they will identify their ornaments. Ornaments of similar weight and size were not mixed with the ornaments recovered. As such this sort of identification should not be relied upon. Learned Additional Sessions Judge had also committed error in relying this evidence about recovery of the ornaments at the instance of the accused persons and also about the identification of these ornaments by the witnesses. Hence, case under section 395 Indian Penal Code has not been proved by the prosecution. 14. Thus in view of my above observations, I am unable to maintain the conviction of the petitioners as held by the learned Addl. Sessions judge. I, therefore, accept this appeal and set-aside the conviction and sentence of the petitioners under Sections 395 and 397 Indian Penal Code passed by the learned Addl. Sessions Judge, Kishangarkbas (Alwar) The accused petitioners are in jail, they may be released from jail immediately, if not needed in any other case. *******