JUDGMENT Y.B. Suryavanshi, J. - l. Criminal Appeals Nos. 1268/88, 1286/88 and 366/89 arise out of a common judgment, dated 7-12-88 in S.T. No. 38/86, by Shri Yakub Ali, A.S.J., Shah dol. Accordingly, they are heard together and disposed of by common judgment. All the six appellants, namely, Sheikh Jumman, Habbu alias Habibulla, Mohanlal, Mohd. Ayub, Jitendra kumar alias Pappi and Kishanlal alias Kishan have been convicted under 'Sections 395/397 IPC and each has been sentenced to undergo seven years R.I. and a fine of Rs.1,000/- in default to undergo two years R.I. The appellants Sheikh Jumman and Kishanlal have been further found guilty U/s 25 (1)(a)/27 Indian Arms Act and each has been sentenced to two years R. I. and further a fine of Rs. 500/-, in default further R.I. for two months with a direction that the substantive sentences awarded to Sheikh Jumman and Kishanlal shall be concurrent. 2. The prosecution story is, that on 23-12-85. at about 8 p.m., the complainant Ramesh was sitting inside his house in the kitchen with his wife Neeta, whereas, the complainant's father Ramswaroop, mother-Premwati and his brother and sister, respectively, Suresh and Krishnabai were warming up in the Angan. Those six accused/appellants arrived on two motorcycles. Three seated on each motorcycle. They entered the house. The appellants Sheikh jumman and Kishanlal were armed with country made pistols, appellant Ayub had a hockey stick and the remaining appellants had tangis-They threatened to set the house on fire and assaulted the complainant Ramesh and his father Ramswaroop Sheikh Jumman had fired the pistol in the air Ramesh was robbed of Rs. 250/- kept in his pocket. Appellant Kishan alias Kishanlal threatened Neeta, wife of Ramesh and snatched a necklace with a small golden mohar, called ADDHI. Meanwhile, the complainant Ramesh went to police station Budhar situated at a distance of about 9 Kms., where the F.I.R. lodged at 9.15 p.m. was recorded by S.O. Shri R.P. Singh (P.N. 15), Offences u/s 395/397 I.P.C. and 5/27 Arms Act were registered (Ex. P-19). The inmates had raised a hue and cry and the miscreants after looting Rs 250/ and the golden ADDHI valued Rs.1,200/-fied-away. This may be termed as FIRST STAGE of the "transaction"). 3. P-19). The inmates had raised a hue and cry and the miscreants after looting Rs 250/ and the golden ADDHI valued Rs.1,200/-fied-away. This may be termed as FIRST STAGE of the "transaction"). 3. The SECOND STAGE is that after recording F.I.R., Shri R.P. Singh S.O. (PW 15 along with police force, and together with the complainant Ramesh proceeded in a vehicle towards the village. While this police party was in the jungle, called Manhari jungle, two motor cycle were sighted approaching from the opposite side. Police party signaled them to top, but they opened fire, though none was hurt. In this encounter, the police challenged the miscreants, saying, that they have been encircled and they should, better surrender, with hands up. All these appellants did so. 'They were apprehended and taken into custody. The further story is, that Shri R. P. Singh (P.W.5) searched these accused. Accordingly, one 12 bore country pistol, 2 cartridges and currency notes Rs.250/- were seized from the possession-of Sheikh Jumman, a golden ADDHI and a revolver and 4 live cartridges were seized from Kishanlal. Similarly, a hockey stick and tangis were seized from the remaining accused. Two motor cycles were also seized. Seizure memos Ex. P-13 to is were drawn at the spot. The accused were taken to the police station. 4. Shri Tiwari, S.I. (PW 14) went to the village. Site map was drawn. One empty cartridge and one live 32 bore cartridge and Fullari (probably beads) which were parts of the broken Necklace, were also seized. Ramesh, Neeta and Ramswaroop were sent for medical examination and were examined by Dr. Agrawal (P.W. 3). Arms and ammunitions were sent to F. S. L., Sagar who reported that the Pistols were in working order, and their barrels showed signs of discharge. The used cartridges were opined to have been fired from the pistol and other cartridges could be fired from the particular weapons described. Investigation further revealed, that the complainant Ramesh, two days before the incident had some quarrel with Ram Awtar and Shivlal (Accused-since discharged) who are friendly with Sheikh Jumman. It was further found, that one of the motor cycles belonged to PW 1 Chandra Prakash who had given it for repairs to accused Ayub. On 10-1-86, Sarpanch Ramgopal Soni conducted test identification of ADDHI which is alleged to have been identified correctly by Neeta (PW 13) and Ramswaroop (PW 7). It was further found, that one of the motor cycles belonged to PW 1 Chandra Prakash who had given it for repairs to accused Ayub. On 10-1-86, Sarpanch Ramgopal Soni conducted test identification of ADDHI which is alleged to have been identified correctly by Neeta (PW 13) and Ramswaroop (PW 7). On these allegations charge-sheet was submitted against all the eight accused. Six appellants it is said, committed dacoity at the instigation of Ram Awtar and Shivlal. 5. The learned A.S.J. discharged Ram Awtar and Shivlal. The trial proceeded against only these six appellants. The defence case is, that the F.I.R is fabricated; the story about the alleged encounter is false and the resultant alleged seizures of articles are also concocted; that there had not been proper test identification of ADDHI; and no test identification bas been held in respect of accused; that articles were already displayed through the press media and even photographs were taken and published in the newspapers. D.W. l Dinesh Agrawal, a Journalist was examined in defence who proved the photograph and the news item about the encounter. 6. It is noteworthy that these six appellants, in context of the facts stated about the encounter, were separately charge-sheeted u/s 307/34 I.P.C. also (S.T. No. 113/86). But they have been acquitted, as per the certified copy of the judgment, on 7-12-1986. 7. The present appellants in S.T. No. 38/86 have been convicted as referred in the opening para. 8. The learned counsel for the appellants, Shri J.P. Dubey, and Shri Pandit, learned G.A., were heard at length. 9. Prosecution relied upon direct testimony that of the complainant PW 10 Ramesh and other inmates in the family. viz PW 7 Ramswaroop, PW 8 Premwati, PW 13 Neeta PW 11 Suresh and PW 9 Krishna. PW 12 Jubraj, a neighbour was also examined. But I find that PW 7 Ramswaroop, PW 8 Premwati, PW 9 Krishna, PW 10 Ramesh, respectively father, mother. sister and brother of PW 10 Ramesh deposed that they were not present in their house at the time of dacoity and subsequently came to know about the incident. They were declared hostile. Be that as it may, those four alleged eyewitness is who are kith and kin of Ramesh and his wife, do not support the incident of dacoity as alleged. They were declared hostile. Be that as it may, those four alleged eyewitness is who are kith and kin of Ramesh and his wife, do not support the incident of dacoity as alleged. Ramswaroop, reportedly had a minor leg injury but he was not even questioned how and why he had sustained that injury. The evidence of those witnesses does not establish the identification the accused and their involvement in the said dacoity. PW 12 Jubraj (a neighbour) also does not support the prosecution. The trial Court has relied upon the evidence of PW 2 Patel who vaguely stated, that 4/5/6 persons (all strangers) had visited village enquiring the whereabouts of the complainant. But his evidence also is of no assistance to establish the identity of the accused. 10. The total evidence consists of the statements of PW 10 Ramesh and his wife PW 12 Neeta. They have broadly deposed about the facts in the prosecution story referred earlier Ramesh bad deposed that Sheikh Jumman slapped and robbed Rs.250/-. He also deposed about the weapons attributed to be in possession of those appellants. All that PW 13 Neeta says is, that during the incident, the miscreants were calling one another by their names; that is why she knows only names, but admittedly, they were all strangers and she does not say who is who. In absence of any test identification, her evidence to establish identity of accused is extremely doubtful. 11. (a) Other six witnesses having turned hostile and Neeta's testimony being doubtful, the prosecution case hinges mainly on the statement of PW 10 Ramesh which together with seizures of articles have been relied upon by the trial Court. Some of the criticism of his evidence does not hold water e.g. that Ramesh did not tell the villagers who lived on his way to P.S., that would have been a cry in wilderness. Ramesh went from field to field as the crow flies. obviously, being panic-stricken he avoided risk of going through usual route. There is also no substance in the submission that instead of going to the police-post which was nearer, he went to police station. (b) But other material infirmities in his evidence seem to have been ignored by the learned trial Court. Ramesh stated, that the ADDHI was not snatched in his presence, contra in F.I.R. he stated that Kishan at the point of revolver snatched it. (b) But other material infirmities in his evidence seem to have been ignored by the learned trial Court. Ramesh stated, that the ADDHI was not snatched in his presence, contra in F.I.R. he stated that Kishan at the point of revolver snatched it. The defence case is that F.I.R. was recorded subsequently. Then, in the F.I.R. he named only two dacoits, namely Sheikh Jumman and Krishna and narrated that he would he able to identify four others. It was further urged, that therefore. Identification Parade in respect of these four accused was essential. The learned Govt. Advocate contended that this witness was present during the encounter when the accused were arrested and articles Were seized, and therefore, any such test-identification parade would have been meaningless. According to F.I.R. Ramesh knew only two accused but in para 7 of the deposition he contradicts himself saying, that he knew two more accused Habbu and Ayub also. But there is omission of those names in F.I.R. Omission of the names of four accused in F.I.R., which is the earliest version, is material discrepancy in evidence which the trial Court seems to have totally ignored as inconsequential (c). Furthermore, in para 19 Ramesh admits that a criminal case was pending against him for assaulting Shivlal and Ram Awtar (discharged accused) and para 7 shows that 3 or 4 criminal cases for thefts are also pending against him. The up shot of the above discussion is that there is no creditable evidence to convict the appellants. In addition it has not been demonstrated that section 157 (1) Cr. PC in its terms has been complied, which gives a handle to the contention that' the F.I.R. is fabricated. 12. The second circumstance relied upon by the trial Court is the' story of encounter and seizures attributed to each of the accused, including; the seizure of ADDHI and currency notes of Rs.250/-. That is the only lost property. So far as ADDHI is concerned, as noted in para 25 of the judgment: it has been stolen from Malkhana, and therefore, that case• article is not available as evidence. I do not agree with the strange reasoning that this; circumstance does not help the defence and yet it is helpful to the prosecution case." ADDHI was identified by Neeta Bai before the Sarpanch. I do not agree with the strange reasoning that this; circumstance does not help the defence and yet it is helpful to the prosecution case." ADDHI was identified by Neeta Bai before the Sarpanch. But para 30 of the judgment itself shows that this AADHI in question did not, have any thread with beads, but other necklaces mixed had beads in a thread. (Distinguishing marks). Moreover, ADDHI was seized that very night, i.e. on 23-12-85, yet the test identification was held on 10-1-1986, i.e. belatedly; after 18 days, there is no explanation for delay. And there is no evidence to show that till then it was kept in a sealed condition. DW 1 Agrawal, a Journalist says that all seized articles were laid on a table for display on 24-12-85. It is not clear whether the display of the seized articles excluded ADDHI. Therefore, the link about the seizure of ADDHI connecting accused Kishanlal with the offence is also not established. 13. Still another criticism about the convictions recorded u/s 395/397 I.P.C. is, that even according to the prosecution, only two accused, namely. Sheikh Jumman and Kishanlal had revolvers, which are "deadly weapons". The judgment does not show how and why that hockey stick and tangis, allegedly recovered from others, could be called deadly weapons. In Phool Kumar v. Delhi Admn. AIR 1975 SC 905 it was held, that use of deadly weapon by one offender at the time of dacoity could not attract section 397 and the imposition of minimum punishment on another offender who had not used and deadly weapon is improper. Therefore, the convictions of four appellants attracting section 397 I.P.C. are patently unwarranted. 14. Apropos the story about encounter and the seizures, it was urged that corresponding entries, about the police force when it proceeded from the police station and then, ultimately when it returned with the culprits and articles should have been produced. Non-production of those entries, in the circumstances of this case, has certainly rendered the prosecution case suspect. 15. The learned trial Court as regards story of uncounter has placed reliance on the evidence of PW 10 Ramesh, PW 14 Shri Tiwari, PW 15 Shd R.P. Singh, S.O. All these three witnesses have deposed the story about encounter and seizures. Non-production of those entries, in the circumstances of this case, has certainly rendered the prosecution case suspect. 15. The learned trial Court as regards story of uncounter has placed reliance on the evidence of PW 10 Ramesh, PW 14 Shri Tiwari, PW 15 Shd R.P. Singh, S.O. All these three witnesses have deposed the story about encounter and seizures. However, these very witnesses, on identical facts, have been examined in S.T. No.39/86 which related to the charge of these six appellants u/s 307/34 I.P.C. A certified copy of the judgment acquitting all these six appellants of these charges has been produced for the contention that these witnesses have been not only completely disbelieved, but their evidence has been found to be highly suspicious. Therefore, the findings about the encounter in the two Sessions Trials are diagonally opposed to each other. 16. The learned trial Court could have avoided such a situation by resorting to section 220 Cr. P.C. Sub-section (1) of section 220 reads: "220. Trial for more than one offence-(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence," The expression "the same transaction" used in sections 220 and 223 Cr. P.C. is nowhere defined. It being incapable of exact definition, the expression has been left undefined in order that the Court's discretion may not be fettered in any way. Common sense and the ordinary use of language must decide, whether on the facts of a particular case, it is one transaction or several transactions. P.C. is nowhere defined. It being incapable of exact definition, the expression has been left undefined in order that the Court's discretion may not be fettered in any way. Common sense and the ordinary use of language must decide, whether on the facts of a particular case, it is one transaction or several transactions. According to Sir James Stephen, a "transaction is a group of facts so connected together as to be referred to by a single name as a crime, a contract, a wrong or any other subject of• enquiry which may be in issue." "It is a question of fact in each case whether there is unity, continuity and proximity of time and place" and "community of purpose or design to ascertain whether a series of acts are parts of the same transaction," "It is essential to see whether they are linked together to present a continuous whole"_ "A mere difference in time or place between the commission of one offence and another will not necessarily import want of such continuity and they may yet be linked together by a continuity or community of purpose forming the same transaction.....The main test is continuity of action and community of purpose." An interval of time does not necessarily indicate want of continuity though the length of interval may be an important element in determining the connection between them." "Where the evidence to prove the several offences is identical, the acts must be held to form one transaction." The scope and application of this expression, "same transaction" has been lucidly referred in Sukar's Criminal Procedure Code, 5th Edition at P.P. 331 to 393 (Extract referred). 17. In the instant case the "first phase" of the prosecution story has been described in details in para 2, and the second stage in para 3, supra. About an hour after the alleged dacoity, the miscreants while retreating came across the police force. That is how, allegedly, there was an encounter followed by ultimate surrender and seizures of weapons. The learned trial Court in S.T. No. 39/86 had given a finding that the intention of those one or two persons who fired was not the one envisaged u/s 300 IPC. It seems that just to scare and to facilitate escape they fired. That is how, allegedly, there was an encounter followed by ultimate surrender and seizures of weapons. The learned trial Court in S.T. No. 39/86 had given a finding that the intention of those one or two persons who fired was not the one envisaged u/s 300 IPC. It seems that just to scare and to facilitate escape they fired. But the learned trial Judge in the judgment under appeal has believed the evidence of the two police officers and Ramesh, contra, in the other Sessions Trial, these very witnesses were examined and therein he found their narrations about the encounter doubtful. In sum, he discarded the evidence because no DEHA TI NALISHI was written on the spot, though seizures were made on the spot: that drawing of seizure memoranda has been held doubtful because the crime not related to dacoity; that there are discrepancies in the depositions of these witnesses as to the place where they came across the motor-cycle; and also there is discrepancy about the distances from where they were sighted and arms were discharged; that there is absence of ROZNAMCHA entries which could have shown the time the police party left the police station and a host of such reasons. Ultimately, the finding is, that the charges have not been proved beyond doubt. And yet, the same evidence has been believed in S.T. No.38/86 for convicting the appellants under sections 395/397 and also under the Arms Act. As the offences were committed virtually in the "same transaction," there could have been one trial. Though I do not entirely agree with some of the infirmities described in appreciation of evidence of these, three witnesses, because some of them are not very material, yet, in absence of entries in the Roznamcha and also bearing in mind the fact that it is unthinkable that after committing dacoity these six persons would remain in the village for almost an hour or so, this part of the prosecution story could not be said to have proved beyond doubt. Therefore, on basis of the record in this case, I find that the convictions of the appellants are unsustainable. RULE ESTOPPEL 18. Therefore, on basis of the record in this case, I find that the convictions of the appellants are unsustainable. RULE ESTOPPEL 18. The learned counsel for the appellants also urged that on identical evidence all these appellants have been acquitted in S. T. No. 39/86, whereas on the same evidence they have been convicted in S. T. No. 38/86, which could not have been done in view of the rule estoppel. Particular reference was made to a five Judges judgment reported in Manipur Admn. v. Bira sing AIR 1965 SC 87 . Therein, their Lordships observed: "The rule of issue estoppel in a criminal trial is, that where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial, and conviction of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of S. 403 (2). The rule is not the same as the plea of double jeopardy or autrefois acquit. The rule does not introduce any variation in the Code of, Criminal Procedure either in investigation, enquiry or trial. It also does not prevent the trial of any offence as does autrefois, but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a Court of competent jurisdiction. The rule thus relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent Court at a previous trial. Further, S. 403, Cr. P.C. does not preclude the applicability of this rule of issue estoppel. The rule being one which is in accord with sound principle and supported by high authority and there being a decision of Supreme Court which has accepted it as a proper one to be adopted, there is no reason for discarding it. (S) AIR 1956 SC 415 , Affirmed. AIR 1963 SC 340 and (1963) 3 All ER 510 Expl. The rule being one which is in accord with sound principle and supported by high authority and there being a decision of Supreme Court which has accepted it as a proper one to be adopted, there is no reason for discarding it. (S) AIR 1956 SC 415 , Affirmed. AIR 1963 SC 340 and (1963) 3 All ER 510 Expl. Case law discussed." In Bhoor Singh v. State of Punjab AIR 1974 SC 1256 in para 24 the rule estoppel came up for consideration. Therein the appellant Ajit Singh was simultaneously but separately tried by the S. J. for an offence n/s 27 Arms Act, relating to the possession of a gun, and was acquitted. No appeal was filed by the State and the order of acquittal became final. But Ajit Singh and others were also tried for committing under in which this gun was allegedly used. The main case was decided first, and the other one under Arms Act subsequently; In the case under the Arms Act, the trial Judge did not record any findings that Ajit Singh was not in possession of the gun. The acquittal under the Arms Act Was held to be perhaps erroneously on the sole ground that the intention to use the gun or allow its use for any unlawful purpose" had not been proved which is an essential ingredient of an offence u/s 27 Arms Act. Ajit Singh, however, had admitted that the gun in question was recovered from his possession at the hospital. The doctrine of issue estoppel in these circumstances was held, not applicable. On facts referred in Piara Singh v. State of Punjab AIR 1969 SC 961 the principles of issue estoppel was held not applicable in that case. In Lalta and others v. State of U.P. AIR 1970 SC 1381 the conviction of the accused under sections 465 and 471 IPC was held, not maintainable because of a prior complaint on which the accused were tried and acquitted. 19. However, in this case. I find that the prosecution evidence itself suffers from serious infirmities and convictions cannot be upheld. In the instant case, identical evidence was led by the prosecution in both the trials having common issue of facts but divergent findings have been given. The trial Court was blowing hot and cold in the same breath. 19. However, in this case. I find that the prosecution evidence itself suffers from serious infirmities and convictions cannot be upheld. In the instant case, identical evidence was led by the prosecution in both the trials having common issue of facts but divergent findings have been given. The trial Court was blowing hot and cold in the same breath. But it cannot be said that the Sessions Trial which gives findings that the story of encounter and seizures is very doubtful, is a finding given on a former occasion/trial because I find that the judgments in both the Sessions Trials were pronounced on the same date. That is why the rule estoppel is not applicable in this case. To reiterate, the prosecution even otherwise has failed to prove the case beyond reasonable doubt. 20. Accordingly, all the three Criminal Appeals, i.e. Criminal Appeal No. 1268/88. Criminal Appeal No. 1286/88 and Criminal Appeal No. 366 of 1989 are hereby allowed. The convictions of the six appellants under section 395/397 IPC. and that of two appellants. Sheikh Jumman and Kishanlal, under sections 25/2 of the Indian Arms Act and the sentences awarded to them are hereby set aside, and they be set at liberty forthwith, if not required for any other offence.