JUDGMENT 1. - The appellants have preferred this appeal against the judgment dated 30th January. 86, passed by the Addl. Sessions Judge, Gangapur City, by which he convicted the appellants for the offence under Section 395 I.P.C. and sentenced each to 5 years' rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine, to further undergo two months' R.I. They were also convicted under Section 396 I.P.C. and sentenced to imprisonment for life and a fine of Rs. 500/-, in default of payment of fine, to further undergo 4 months' rigorous imprisonment. 2. Mst. Ramori wife of Ramdeo gave the statement Ex.P.11. In this statement, it was alleged that on 10-12-82 at about 12 mid-night when she was sleeping in her house alongwith her daughters namely; Chhamma, Pushpa and Mohan Devi and son Bishan Singh, 7-8 persons armed with lathis and gun came in the house and caught hold of her and asked as to where was the property (valuable articles) She replied in negative. Hearing this reply, one of the intruders said that I bring the Trishul and kill her along with her children and they started hitting her with lathis. They took away golden ornaments from the box and also cash Rs. 500/- from a brass vessel. They also looted a golden chain and ear-rings. She has also stated that these persons caught hold of her daughter Mohan Devi and enquired her about the property and took her towards the lane. It was further alleged that hearing hue and cry one Vijaindra came for the rescue who was shot dead by the miscreants. I hereafter, one Nibal, brother-in-law of Mst. Ramoti came for their rescue. At that time, another miscreant fired at him but the gun hit Mohan Devi. Nibal hit the miscreants with lathi. It was further stated that her husband and another person were sleeping in the 'Patoor'. The miscreants also enquired from her about their licenced-gun but she denied of having any gun. She has also stated that the miscreants had torches in their hands and she had seen them in the torch light and can identify them if they are brought before her. On the basis of this parcha-bayan, Ex.P.1st, a case under section 395 and 396 Indian Penal Code was registered by the Police at Police Station, Salempur and started investigation. 3. On the basis of this parcha-bayan, Ex.P.1st, a case under section 395 and 396 Indian Penal Code was registered by the Police at Police Station, Salempur and started investigation. 3. The Police investigated the site and prepared the site-memo Ex. P.1. Blood-stained soil was also seized at the spot. Four empty cartridges and two other cartridges were also recovered from the spot. Some pellets and one dat were also recovered During investigation, it was found that accused Atra had also committed another dacoity in village Chatoti and during investigation of that case Atra accused was arrested. Accused Tulsi was also arrested. The Identification-Parade of both the moused was held and they were identified by the witnesses. Dr. B.L. Meena. PW-4, conducted the post-mortem on the dead-body of Mohan Devi daughter of Ram Dayal and in his of inion the cause of death might be shock due to haemorrhage from multiple gun shot wound. The post mortem of Vijaindra Singh was also conducted and in the opinion of the doctor, B.L. Meena, be might have died of shock due to excessive haemorrhage from gun shot wound. After concluding the investigation the Police submitted challan against both the accused-persons. 4. The trial Court framed charges against the appellants under Section 395 and 396 I.P C. Both the accused-persons pleaded not guilty and claimed trial. The contention of the accused Atra @ Atar Singh was that he has been falsely implicated in the case. He was brought from jail at Deeg and taken to the village where he was shown to all the prosecution witnesses. The witnesses have identified him in the identification-parade. He has also stated that he is very well known to Ramdaval husband of Ramoti and he bad taken food at his house. The accused Tulsi bad also stated that he has also been shown to the prosecution witnesses in the Court at Hindaun City, therefore, his Identification-parade is of no value. 5. The prosecution has examined 17 witnesses to establish its case. The accused-persons have not examined any defence-witness. The trial Court after concluding trial and hearing both the parties found both the accused appellants guilty under section 395 and 396 I.P.C. and sentenced them as mentioned above. 6. The learned counsel for the appellants argued that there are 5 eyewitnesses according to prosecution. These witnesses have identified the accused- persons in the torch light. The trial Court after concluding trial and hearing both the parties found both the accused appellants guilty under section 395 and 396 I.P.C. and sentenced them as mentioned above. 6. The learned counsel for the appellants argued that there are 5 eyewitnesses according to prosecution. These witnesses have identified the accused- persons in the torch light. It is admitted fact that there was dark night on the day of occurrence. The witnesses have stated that they identified the accused- persons in the torch light as they were having torches in their hands. It was also argued that it is not possible to identify the accused-persons in the torch light. Apart from this, the Identification-parade has no value because before conducting the Identification-parade both the accused-persons were shown to the prosecution witnesses. Such identification has no value. It was also argued that the trial Court has disbelieved Nihalsingh PW-10. Ramdayal PW-9 and Hukam Singh PW-14. Thereafter two witnesses Jeetmal PW-6 and Ramoti PW-13 remain and the statements of these two witnesses are not worth-reliable. 7. The learned Public Prosecutor supported the judgment of the trial Court and argued that the case has been clearly established against the accused- persons. In a dacoity case it is very difficult to obtain evidence but in the present case there are so many eye-witnesses who have identified the accused-persons in the night and later on identified them at the time of Identification Parade. Therefore, the conviction of the appellants is correct. 8. We have considered the arguments advanced by both the learned counsel, perused the judgment of the trial Court and also gone through the record and the statements of the prosecution witnesses. 9. We would like to discuss the point of identification of the accused- persons. The identification Parade-memo of Tulsi Ram is Ex.P-10 At the time of conducting the parade the accused Tulsi Ram had told to the Magistrate that he used to go in the Court to attend on the Court-date and he was shown to all the prosecution witnesses. Apart from this, Column No. 7 of Ex P. 10 is with regard to the fact narrated by the witnesses who have come to identity. In this column it is mentioned as to whom the witnesses had come to identify. The accused persons were the members of the dacoits-party. Apart from this, Column No. 7 of Ex P. 10 is with regard to the fact narrated by the witnesses who have come to identity. In this column it is mentioned as to whom the witnesses had come to identify. The accused persons were the members of the dacoits-party. It was for the witnesses to have stated that they have come to identify the person who had committed dacoity in the village. But we find that in this column No. 7, it has been mentioned by the Magistrate that all the witnesses who had cone to identify the accused have stated that they have come to identify Tulsi Ram. It means that before conducting the identification the witnesses have stated to the Magistrate that they have came to identify Tulsi Ram Whin they hive given the name of Tulsi it shows that they know the person by name. How they knew the name of Tulsi Ram accused. It indicates that the contention of the accused Tulsi Ram that he was shown to the prosecution witnesses is correct. Therefore the Identification Parade of Tulsi Ram accused is of no value. 10. Ex P. 19 is the Identification Parade-memo of accused Atra @ Atar Singh. Before conducting the Parade the accused has stated to the Magistrate that the witnesses knew him very well as he used to go in the village off and on He has further stated that at the house of Ram Dayal and Ramoti he had taken meal. And as such. both the witnesses knew him very well. If we look at the statement of Ram Dayal PW-9 we find that he knew Atra prior to this incident as he has stated in his cross-examination that be used to come at his house. No doubt, in the subsequent breath he had denied that he used to come to his house but he has stated that he used to come in the village. It is, therefore, clear that Atra @ Atar Singh is very well known to Ram Dayal PW-9 at whose house the dacoity was committed. From his statement it is clear that Atra used to go to his house also. The witnesses who have identified Atra are Ram Dayal himself, his wife Ramoti, Jeetmal PW-6 who is the uncle of Ram Dayal and Hukam Singh PW-14 who is a teacher in another village. From his statement it is clear that Atra used to go to his house also. The witnesses who have identified Atra are Ram Dayal himself, his wife Ramoti, Jeetmal PW-6 who is the uncle of Ram Dayal and Hukam Singh PW-14 who is a teacher in another village. So from the prosecution evidence, we are of this opinion that the Identification Parade of Atra @ Atar Singh is also of no value. On the basis of the identification of both the accused-persons, their conviction cannot be maintained. 11. The another evidence against the accused-persons is that they were identified by the witnesses in the night in torch light. All the witnesses have stated that the accused-persons along with other 7-8 miscreants arrived at the house of Ramoti in the night and looted the property. After reading the statement of the witnesses we find that the accused persons were identified in the torch light by the witnesses. This statement is unbelievable. The night was dark. The accused came for dacoity in the mid-night because they wanted to hide themselves. Jeetmal PW-6, in the cross-examination, has stated that he identified the accused-persons from a distance of 4-5 paces. He has further stated that he was sitting at the door of his house and from there he saw the dacoits. He has also stated that the night was dark. If we see the site-plan E. P.1, we find that the house of Jeetmal is at a quite distance from the place where Mohan Devi and Vijaindra were shot. So it is not possible to identify the accused persons in the dark night from such a long distance. It is incorrect that he was at a distance of 4-5 paces. Apart from this Jeetmal has admitted in the cross-examination that the dacoits had tied clothes on their faces. It means that the dacoits had covered their faces and in such circumstance, it is not possible to identify them. Ramoti PW-13 has stated that their faces were open and there were no clothes on their faces. This statement is contradictory to the statement of Jeetmal. Therefore, it is not possible to identify the accused-persons in the night specially when they had hidden their faces. It is also not believable that the miscreants would throw light of the torches on their faces. This statement is contradictory to the statement of Jeetmal. Therefore, it is not possible to identify the accused-persons in the night specially when they had hidden their faces. It is also not believable that the miscreants would throw light of the torches on their faces. The witnesses have claimed to have identified the accused-persons in torch light at the time of dacoity. It is not possible that culprits will throw light of the torches on the face of each other in order to give: chance to the witnesses to have identified them. In the case of Noor Khan and others v. State of Raj 1984 RLR 329 following the case of Marks @ Harprasad v. State of Rajasthan 1979 Cr. LR (Raj.) 7 . In that case also 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 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". 12. The case of Noor Khan and Ors. (supra) was decided by one of us (Justice G.K. Sharma). So in view of the case cited above, we hold that it is not possible that the dacoits or the accused-persons would throw light of the torch on their faces and would give chance for the witnesses to identify them. Therefore, this story of the prosecution that the witnesses have identified the accused-persons in torch light is unbelievable. 13. There is no recovery from the accused-persons. Even the gun which is alleged to have been used by them has not been recovered. 14. We have gone through the evidence of the prosecution witnesses minutely and we are of the opinion that the witnesses are most unreliable and untruthful. It is not worthwhile to repeat what the witnesses have stated in the court-statement and what they had said in the cross-examination. It is sufficient to mention that the witnesses have dis-owned their own testimony. All the witnesses are relative witnesses. The witnesses could not have seen the accused persons committing dacoity in the dark night. It is not worthwhile to repeat what the witnesses have stated in the court-statement and what they had said in the cross-examination. It is sufficient to mention that the witnesses have dis-owned their own testimony. All the witnesses are relative witnesses. The witnesses could not have seen the accused persons committing dacoity in the dark night. The only circumstance against the appellants is the identification by the prosecution witnesses and we have mentioned above that this identification is farce and not believable. 15. It is unfortunate that two persons have been murdered in this dacoity but it does not mean that anybody who has been challaned by the Police should be convicted. Unless a case is established beyond reasonable doubt against the person, he cannot be convicted for the offence levelled against him. In the present case the prosecution has failed to prove its case. The learned Sessions Judge has not correctly appreciated the evidence and we are unable to sustain the conviction of the appellants. 16. As a result, the appeal is accepted. The appellants are not found guilty of the offence charged under section 395 and 396 IPC and they are acquitted. Both the accused-persons are in jail. They are set at liberty forthwith, if not required in any other case.Appeal accepted. *******