Judgment V.P. Mathur, J. 1. THESE two appeals arises out of the same judgment passed in S. T. no. 357 of 1983. by Sri Gaya Prasad, the then Vth Additional Sessions Judge, Mirzapur, on 23-4-84. All the appellants have been convicted under section 395, IPC and sentenced (to five years' rigorous imprisonment each. Feeling aggrieved, they have come upto this court through these two appeals. 2. IT is said that a dacoity took place at the house of the complainant, Mishri Lal, in village Katran, Police Station Kotwali Dehat. Mirzapur in the night between 12th and 13th of September, 1983 sometime after mid-night. 10 12 dacoits took part in this dacoity. A written report of this occurrence was lodged at the police station, which is four miles from the scene of occurrence, on 12-9-83 at .05 a. m. No body has been named in the FIR. All the accused were arrested subsequently on different dates and they were put up for identify identification and on the basis of the identification evidence they were charged, tried and convicted and sentenced as mentioned above. There can be no dispute as regards the dacoity at the house of Mishri Lal complainant in the night in question. The allegations of the FIR are that the dacoits broke open boxes and looted the ornaments, cash and other articles and ran away with the booty They also resorted to firing as a result of which injuries were sustained by Kamta and one Smt.Shant Devi, wife of Chaukidar Ram Lakhan. The Investigating Officer, who inspected the scene of occurrence soon after the occurrence on 13-9-83, and found three boxes in the house with broken Kundas and the contents rifled. He also found blood stains on the roof of the house. Blood stain samples were taken from out side the bouse towards east north. Towards north is a well and from north west of this well one broken country made pistol was also recovered. There were also 7 pieces of a bomb with pellets and nails which were recovered on the spot. The fact of injuries to Kamta and Smt.Shanti Devi has been established satisfactorily beyond doubt. From all these facts the factum of dacoity is established. Even the defence does not dispute it. 3. THE question remains as to how far the implication of the appellants in this case is made out. The fact of injuries to Kamta and Smt.Shanti Devi has been established satisfactorily beyond doubt. From all these facts the factum of dacoity is established. Even the defence does not dispute it. 3. THE question remains as to how far the implication of the appellants in this case is made out. It may be mentioned here that the prosecution story is that Shyam Lal, Akram, Kaloo Narayan and Bathey, appellants of criminal appeal no. 1218 of 1984, were arrested in the night between 13th and 14th of September, 1983, at about 12.30 after mid night under sections 399/402, IPC on the out skirts of village Adhpera and Kakraha from near Gomti Chnuraha where they are said to be sitting under a Bargad tree making preparation for committing dacoity They were put under cover, brought to the Thana and lodged there. Thereafter from Havalat they were sent to Jail at 9.10 a. m. on 14-9-83, but for one reasons or the other there was some dealy in getting the necessary papers from the Magistrate concerned and they could not be admitted to Jail on that date. Actually on 15-9-83 at 6.15 a. m. they were admitted to District Jail and during previous night they were detained at Police Station, Katra. 4. SO far as Lallan is concerned he was arrested on 21/22-10-83 at mid night with some others, under sections 399/402 IPC from village Samariya, Police Station Pannoo Gam, put under cover and brought to the Police Station at 4.00 a. m. and then the same day was sent to jail. Similarly, Lachhman was also arrested in the case under section 399/402 IPC from a temple which lies within the area of police out post Churk. He was also put under cover, brought to the Thana and lodged there in lockup on 6-11-83 at 2.15 a. m. and then was sent to Jail. 5. THE accused persons Shyam Lal, Bathey, Mallo, Akram and Narayan alongwith others were put up for identification on 13-10-1983 and the result of their identification is as follows ;- Mishri Lal PW 1 correctly identified Shyam Lal, Bathey, Mallo and Akram and did not commit any mistake. Raj Narain PW 2 correctly identified Shyam Lal, Narayan, Bathey and Akram and did not commit any mistake. Chhedi PW 3 correctly identified Shyam Lal and Narayan but made one mistake in the parade of Panna. Raj Narain PW 2 correctly identified Shyam Lal, Narayan, Bathey and Akram and did not commit any mistake. Chhedi PW 3 correctly identified Shyam Lal and Narayan but made one mistake in the parade of Panna. Banwari PW 4 did not identify any of these persons. Phoolchand PW 5 also did not identify any of these persons. THE identification proceedings regarding Lallan and Lachhman were held on 20-12-83. Raj Narayan did not identify any one and made one mistake in the parade of Lallan. Similarly, Mishri Lal also did not identify any one and made one mistake in the parade of Lallan. Chhedi Lal identified both, without any mistake. Phool Chand identified Lallan correctly and did not commit any mistake. Banwari similarly identified Lachhman without any mistake. THE over all performance of the witnesses is given as under j- Raj Narain 5 good one wrong 83 percent Banwari one good for Lachhman 100 per cent good Chhedi four good one wrong 80 percent Phoolchand One good for Lachhman 100 percent Mishri Lal 5 good one wrong 83 percent 6. THE question, however, will remain as to whether there was sufficient light on the spot in which the faces of the dacoits could be seen so vividly so as to enable the witnesses to recognise them subsequently during the identification proceedings. THE second question will be whether even if there was sufficient light the witnesses were in a position that they had opportunity to see the faces of the dacoits and were able to identify them subsequently. The question of light is of prime importance. There is evidence of the witnesses to show that it was a dark night and the only light which is said to be present on the spot is the light emanating from the torches of some of the witnesses and the torches of the dacoits. In the FIR there is mention of the torches without specifying as to whose torches they were. It is no where mentioned that the dacoits were possessed of torches. The witnesses have come forward to depose that there were torches with some of the witnesses but in this respect there are some contradictions According to the prosecution case, Ram Lakhan's wife Smt Shanti Devi came out with a torch and she was promptly injured by one of the dacoits. The witnesses have come forward to depose that there were torches with some of the witnesses but in this respect there are some contradictions According to the prosecution case, Ram Lakhan's wife Smt Shanti Devi came out with a torch and she was promptly injured by one of the dacoits. Mishri Lal PW 1 says that he and Kamta were possessed of torches. They flashed them towards the dacoits from the roof while they were knocking the main door and perhaps also while they were inside the house. According to Mishri Lal, these torches were thrown by their owners on the roof, when these persons ran to the neighbouring roof after Kamta was injured and subsequently these torches were taken away by the dacoits. This fact is not mentioned in the FIR. According to Raj Narayan, Gulloo, Rajaram and Ram Prasad had torches. Mishri Lal does not save so. Chhedi very clearly says that he had mo torch and it was a dark night. When the Investigating Officer PW 1 entered the witness-box he said that no torch was shown to him, none was taken by him in custody, none was examined by him and none was returned by him to the witnesses. Thus he contradicts all the witnesses in this respect. Of course, the only torch that was presented before him was the torch so presented in the Thana by Raja Ram on 25-10-1983, and there is its memo Ext. ka 18 on record. An analysis of the entire evidence, therefore, will show that the story of torches being present on the spot with the witnesses has not been satisfactorily established beyond doubt. If the witnesses were possessed of torches,, they would have definitely shown them to the Investigating Officer, who reacted the spot soon after the occurrence and recorded their statements. Why should Raja Ram had taken his torch to the Thana, almost more than a month after the occurrence, is not clear. The presence of torches with the witnesses, therefore, becomes extremely doubtful. So far torches of the dacoits are concerned; the witnesses do speak about the same but it is highly improbable that the dacoits will be flashing their torches on their own faces to help the witnesses to see their features. This never happens. The presence of torches with the witnesses, therefore, becomes extremely doubtful. So far torches of the dacoits are concerned; the witnesses do speak about the same but it is highly improbable that the dacoits will be flashing their torches on their own faces to help the witnesses to see their features. This never happens. In my opinion, therefore, there was so justification for the court below to hold that there was sufficient light on the spot with the help of which the witnesses could have seen the faces of the dacoits. This is one aspect of the matter. 7. THEN comes the question of opportunity to see the dacoits. The complainant Mishri Lal and his brother Kamta and Anantoo were sleeping on the roof. Raj Narain has not been mentioned in the FIR but now it is said that he was also present, sleeping in the eastern kothari of the house. According to Mishri Lal, he saw 11-12 dacoits on the northern main door of his house. The story of torches having been discarded, in a dark night, it will not be possible to see the faces of the dacoits from the roof while they were standing on the door. THEN it is said that Rana Lakhan's wife came out and immediately she was fired at by one of the dacoits and injured. THEN some dacoits scaled the wall and came into the Aangan and opened the main door and about 7-8 dacoits entered. Others remained out side keeping watch. Mishri Lal and his brother cried out and started throwing brick bats on the dacoits. THEN witnesses Mullan, Ram Prasad, Ramlakhan, Banwari. Gulloo, Chhedi etc. had come. Kamta wielded Danda from the wall of the house and he was promptly fired at and injured and then Mishri Lal and Kamta jumped on the roof of the house of Ram Dular, which is a tiled roof, after discarding their alleged torches. They did not move from there even during the whole of the dacoity Mishri Lal says that it was a dark night and it was rainy season, although it had not raised in that night. For about half an hour after their jumping on the roof of Ram Dular, the dacoity continued and these two persons came to their own house only after the departure of the dacoits. For about half an hour after their jumping on the roof of Ram Dular, the dacoity continued and these two persons came to their own house only after the departure of the dacoits. During the cross-examination he admits that within two minutes of their getting up Smt.Shanti Devi was injured and immediately thereafter Kamta and Anantoo started throwing brickbats from the roof and at once Kamta was hit by firing and the three brothers ran away from the spot. Under these circumstances it will be very difficult to accept the prosecution version that Mishri Lal had any opportunity of seeing the faces of the dacoits, situate as he was and in the absence of any light whatsoever. 8. THE second witness Raj Narain PW 2, as I have stated above, is not mentioned in the FIR it is said that he was sleeping in the eastern Kothri and woke up when Ram Lakhan's wife cried and firing took place. Then he came out and saw 10-12 dacoits on the northern door. His three brothers were pelting brick bats on the dacoits. One of the dacoits fired from below and caused injury to Kamta. One scaled wall and came in, opened the northern door and allowed the remaining 4-5 others to enter. Some dacoits even went up the roof. His brothers raised alarm and then the witnesses collected. He saw the faces of the dacoits in the torches of the villagers and the dacoits, while he himself was standing by the side of the western wall of the Karkhana. THE site plan will show that the wertern wall of the Karkhana is the eartern wall of the house adjacent to it and there is no place where one could stand there. He also says that several witnesses lad arrived on the spot. THE dacoits ran out with the booty and when he first saw they had already run 8 to 10 paces. There is some doubt about the presence of Raj Narain on the spot. It also does not appeal reason to hold that even if he was present, from where he was stationed, he could see the faces of the dacoits. The third witness is Chhedi. He is son of Ram Dular, whose house is adjacent to the house of the complainant towards west. It also does not appeal reason to hold that even if he was present, from where he was stationed, he could see the faces of the dacoits. The third witness is Chhedi. He is son of Ram Dular, whose house is adjacent to the house of the complainant towards west. He says that Ram Lakhan's wife cried and so he also got up on hearing the sound of firing He remained standing on the door of his Usara, which is towards north of his house and did not go in his house at all. He had no torch. Whenever firing was resorted to he was taking shelter inside the Usra and lastly he said that he had first glimpse of the faces of the dacoite when they were running away with booty and had already reached near the house of Ram Lakhan towards west. With reference to the site plan prepared in this; case, it will mean that this witness could sot have seen the faces of the dacoits at all. 9. THE fourth witness Banwari has his house 10 paces towards east of the house of Mishri Lal. He woke up co hearing the noise and ran with a Danda, came and stood by the side of the Karkhana where other villagers also came. 10. SIMILAR is the position of Phool Chand witness. He is of the same village. He lives 50-60 paces away in the east from the house of the complainant. He too woke up on hearing the sound of the explosion of a bomb and as soon as he reached near the Karkhana the dacoits come out and ran away. Subsequently, he said that it had happened 10-15 minutes after his arriving there. A persual of this entire evidence will show that the witnesses could not have enough opportunity to see the feces of the dacoits so as to enable them to identify the dacoits subsequently. 11. THERE is a third aspect of the matter also. I have already mentioned above that the five appellants of criminal appeal no. 1218 of 1984, namely Narayan, Bathey, Akarm, Shyam Lal and Malloo are said to have been arrested not in this case but under section 399/402, IPC in the night between 13th and 14th of September, 1983. 11. THERE is a third aspect of the matter also. I have already mentioned above that the five appellants of criminal appeal no. 1218 of 1984, namely Narayan, Bathey, Akarm, Shyam Lal and Malloo are said to have been arrested not in this case but under section 399/402, IPC in the night between 13th and 14th of September, 1983. The prosecution story is that from the scene of that occurrence they were brought under cover to the Thana and lodged there in a lock up and thereafter all along upto the time of their admission in Jail they were kept under cover. As regards that case under section 399/402 IPC a criminal case proceeded against these persons and it is Criminal Sessions Trial No. 375 of 1983. The judgment passed by the learned III Additional Sessions Judge, Mirzapur, in that case has been placed on the record of this case. It is dated 8-5-1984. The State has not filled any counter affidavit in reply to the affidavit with which this judgment was filed. It, therefore, stands established that against this judgment no appeal has been preferred by the State and it has become final. It is a judgment of acquittal. The learned III Additional Sessions Judge has not believed the prosecution story and has held that the prosecution has failed to prove its case beyond a reasonable doubt. It means, therefore, that the story regarding arrest of these five persons under section 399/402, IPC has not been believed and is not established Naturally it will have to be held that they were not arrested as is suggested by the prosecution. This judgment shall operate as stare decisis on this point and the result will be that it will have to be held that the arrest of these persons was made from some other place under some other circumstances. They all say that they were arrested from their houses and they were brought to Thana and shown to the witnesses there. It will be difficult to dislodge that version once the prosecution version is discarded. Hence it cannot be said that these persons were kept under cover all through and were not shown to the witnesses after their arrest, which did not take place as is alleged by the prosecution as a result of the action under section 399/402, IPC. 12. It will be difficult to dislodge that version once the prosecution version is discarded. Hence it cannot be said that these persons were kept under cover all through and were not shown to the witnesses after their arrest, which did not take place as is alleged by the prosecution as a result of the action under section 399/402, IPC. 12. CONSIDERING all the facts and circumstances of the case, it is not established satisfactorily beyond doubt that the seven appellants before me were the persons who actually took part in this dacoity at the house of Mishri Lal and committed loot. They are, therefore, entitled to acquittal and their convictions cannot be up-held. Consequently, both the appeals are allowed. The convictions of the appellants under section 395 IPC as well as the sentences awarded to them are set aside. They are held not guilty and acquitted. They are on bail and need not surrender. Their bail bonds are cancelled and sureties discharged. Appeals allowed.