JUDGMENT 1. -This judgment will deal with the three appeals listed above. They have arisen in the following circumstances. 2. It is alleged that dacoity was committed in the house of Dhoolilal PW. on October 25, 1980 at about 7.30 P. M. The dacoit's were carrying deadly weapons like guns and lathis. They robbed the inmates of the house of silver ornaments and fired a shot in the course of the commission of the crime. A gun belonging to Dhoolilal was also stolen. Dhoolilal and other villagers, who arrived at the scene were able to overpower one of the culprits who disclosed his name as Bhanwariya. Nand Kishore PW. inflicted a sword blow on the foot of Bhanwariya in the process of over-powering him. The other culprits managed to escape. Bhanwariya disclosed their names as Champalal, Ram Narain. Fojiya and Heeralal. These four were arrested by the police on December 20, 1980. Each one of them is said to have made disclosures resulting in the respective recoveries of stolen ornaments and the gun from them. PWs, Nand Kishore, Ram Narain, Ram Kanya, Parvati, Devi Lal, Ramchaarn and Hazari are alleged to have correctly identified Champalal, Ram Narain, Heara Lal and Fojya in a test identification held in the Jail premises. 3. On completion of investigation, all the five accused mentioned above were sent up for trial. The prosecution examined amongst others, Nand Kishore, Parvati, Ram Narain, Devi Lal, Ramcharan, Hazari, Amar Lal, Krishna Gopal and Kalyan as witnesses in support of its case. Relying on the evidence consisting of the alleged recovery of stolen property from the possession of the accused and of their identification by various witnesses, the trial court convicted, Bhanwariya, Champalal, Ram Narain and Fojya under Section 395 I. P. C. and sentenced each of them to rigorous imprisonment for 7 years and a fine of Rs. 200/-or in default further rigorous imprisonment for four months. Heeralal who is said to have been armed with a gun at the time of commission of this crime was convicted under Section 397 I. P. C. He too was sentenced to rigorous imprisonment for 7 years and fine of Rs. 200/-or in default further rigorous imprisonment for 4 months. 4. Aggrieved by the aforementioned order of conviction and sentence, Heeralal preferred an appeal, which has been registered as S. B. Criminal Appeal No. 280/1982. 200/-or in default further rigorous imprisonment for 4 months. 4. Aggrieved by the aforementioned order of conviction and sentence, Heeralal preferred an appeal, which has been registered as S. B. Criminal Appeal No. 280/1982. The other four accused also preferred an appeal from the aforementioned order, which was registered as S. B. Criminal Appeal No.196 of 1982. Thereafter, all the five convicts preferred an appeal through the Superintendent, Central Jail, Jaipur, which has been registered . as S. B. Criminal Jail Appeal No. 281 of 1982. As already mentioned, all the three appeals are being disposed of by this judgment. 5. After hearing both sides and perusing the evidence on record, I am of opinion that Bhanwariya has been rightly convicted under Section 395 I. P. C. Pws. Nandkishore, Ram Narain, Devi Lal, Ramchran, Amarlal, Hazari and Dhoolilal have all stated with one voice that Bhanwariya was overpowered and caught by them in the course of commission of this crime. Nandkishore says that he inflicted a sword blow on the foot of Bhanwariya and that as a result of this blow he fell down and was caught by other villagers. It has been proved beyond any reasonable doubt that 10 or 12 persons including Bhanwariya committed dacoity in the house of Dhoolilal and robbed inmates of the house of silver ornaments. I have no doubt whatever that Bhanwariya is guilty of the crime of dacoity punishable under Section 395 I.P.C. 6. Turning now to the prosecution case relating to Champalal, Ram Narain, Fojya and Heeralal, I find that the case against them has not been proved beyond reasonable doubt. Evidence produced against them is two fold. In the first place the prosecution relies on their identification by some of the witnesses in the trial as corroborated by such identification during the investigation before a magistrate in a line up in the Jail. This evidence does not carry conviction because the witnesses have admitted in the trial that the dacoit's were having their faces covered at the time of the commission of the crime. There was thus no scope for any of the witnesses to have seen the faces of any of the culprits so as to be able to identify him subsequently. PWs. Nandkishore, Parvati, Ramkanya, Ramcharau and Hazari are amongst the category of witnesses who admitted that the dacoit's were having their faces covered . There was thus no scope for any of the witnesses to have seen the faces of any of the culprits so as to be able to identify him subsequently. PWs. Nandkishore, Parvati, Ramkanya, Ramcharau and Hazari are amongst the category of witnesses who admitted that the dacoit's were having their faces covered . Nand Kishore and Parvati further admitted that all that they could see of the respective faces of the culprits were their eyes and nothing else. There are other witnesses like Ram Narain and Devilal who deposed that only few of the dacoit's were having their faces covered. They were obviously trying to suppress the truth in order to lend some credibility to the so called identification of the culprits by them in the trial. 7. One of the prosecution witness, namely, Amarlal admitted that he had visited the police station and found that the accused of this case were being detained there in the lockup. This means that he had seen the accused while they were in police custody. The possibility of similar visits to the police station by other witnesses prior to the test identification cannot be ruled out. It will be seen that the accused petitioners were arrested by the police on December 20, 1980 and they were remanded to the judicial lockup on January 2, 1981. The test identification was held on January 6, 1981. It means that the accused remained in police custody from December 20, 1980 to January 2, 1981. There was ample opportunity for the prosecution witnesses to see the accused appellants in the custody of the police during that period. 8. For all these reasons, I do not find safe to place any reliance on the testimony of the these witnesses to the effect that they had seen the accused appellants closely enough at the time of the commission of the crime to be able to identify them subsequently in the test identification and later in the trial. 9. Reliance is also placed by the prosecution on the alleged recoveries of the stolen property from the accused appellants. It is alleged that Champalal made a disclosure statement in the custody of the police leading to the recovery of two silver ornaments from his house. The ornaments are said to have been disinterred by him and produced before the police. Reliance is also placed by the prosecution on the alleged recoveries of the stolen property from the accused appellants. It is alleged that Champalal made a disclosure statement in the custody of the police leading to the recovery of two silver ornaments from his house. The ornaments are said to have been disinterred by him and produced before the police. Similarly, Ramnarain is alleged to have made a disclosure statement leading to the discovery of silver ornaments from his house. The prosecution examined P. W. S. Krishna Gopal and Nazar Mohammed to prove the recovery of these stolen ornaments from the possession of Champalal and Ram Narain. Nazar Mohammed did not support the prosecution case. He denied that any stolen property had been recovered from Champalal and Ramnarain in his presence. Krishna Gopal however supported the prosecution case in that behalf. His evidence does not however inspire any confidence because he was not able to identify Champalal or Ramnarain in the court. No reliance can be placed on his evidence to the effect that the stolen property was recovered from Champalal and Ramnarain for the simple reason that he was not even able to identify as to who Champalal is and who Ramnarain is. 10. Fojya is also said to have made a disclosure statement resulting in the recovery of 14 pieces of .silver ornaments from his Baran. PW. Prithvi Singh was produced as independent witness to support the prosecution case in that behalf. He denied that the police had recovered any stolen ornaments from the possession of Fojya in his presence. The other motbir witness of the alleged recovery of stolen property from the possession of Fojya was not examined as a witness in the trial. 11. Appellant Heeralal is said to have made a statement in the custody of the police resulting in the recovery of the stolen gun from his possession The prosecution produced only one independent witness namely Kalyan who did say that Heeralal had produced the gun from his house. He was however not able to identify to Heeralal in the court. Ne reliance can be placed on the testimony of such a witness. The other motbir witness of the alleged recovery of the gun from the possession of Heeralal was not examined as a witness in the trial. 12. He was however not able to identify to Heeralal in the court. Ne reliance can be placed on the testimony of such a witness. The other motbir witness of the alleged recovery of the gun from the possession of Heeralal was not examined as a witness in the trial. 12. There is no other evidence produced by the prosecution to connect the accused appellants with the crime charged against them. 13. In view of the foregoing discussion, one cannot place any reliance on the evidence regarding the alleged recovery of the stolen property from the possession of the accused appellants and their identification by various witnesses in the court. Their conviction under Section 395 I.P.C. cannot therefore be sustained. 14. In conclusion, I allow the appeals of Champalal, Ram Narain, Fojya and Heeralal against their conviction and sentence. Consequently the impugned, order of their conviction and sentence is set aside. Instead, they are acquitted. They are in jail. They shall be released forthwith, if not required to be detained in any other case. 15. The appeal of Bhanwariya against this conviction under Section 395 I. P. C. fails and is dismissed. He has already remained in Jail for little less than 3 years now. His sentence should in my opinion be reduced to the period of detention already undergone by him. I would order accordingly. He shall also therefore be set at liberty forthwith if not required to he detained in any other case. 16. All the three appeals thus stands disposed of accordingly. *******