N. C. MITTAL, J. ( 1 ) NEERA Lal, appellant No. 1, has been convicted and sentenced to life imprisonment under Section 396 of the Indian Penal Code while appellant Ram Saran has been convicted and sentenced to ten years R. I. under Section 412 of the Indian Penal Code by Sri J. S. Mishra, and Additional District and Sessions Judge, Fatehpur by judgment dated 10-8-1978. ( 2 ) IN brief, the facts of the prosecution case are that in the night in between 5th and 6th May, 1976 a dacoity had taken place at the house of Ram Charan in village Dewara, P. S. Sultanpur Ghosh, district Fatehpur. In the course of the dacoity the dacoits had killed Ram Charan and had succeeded in escaping with the looted property including a Petromex which was scribed in the First Information Report as Gas Batti. A written report (Ex. Ka-1) of the occurrence was lodged on the following day at 10 a. m. at the Police Station at a distance of two miles from the scene of occurrence. The report was lodged by one Som Dutt (P. W. 1) who is not an inmate of the house of Ram Charan, deceased, nor his relation. On the basis of the report a case under Section 396 of the Indian Penal Code was registered and investigation started. The dead body of Ram Charan deceased was sent for post mortem. Both these appellants are alleged to have been apprehended on 2nd June, 1976 by Pramod Shanker Srivastava, S. I. (P. W. 11) at about 11 a. m. near a tube well on the Mughal Road. From the possession of the appellant Ram Saran Petromax (Ex. 3) on which name Kashi Prasad was engraved is alleged to have been recovered. Thereafter both these appellants were made Bapardah and their identification took place on 3rd July, 1976 wherein they were correctly picked up by Som Dutt (P. W. 1), Bhola (P. W. 2), and Sukkha (P. W. 4 ). The appellants were charged-sheeted and tried along with other accused of Session Trial No. 73 of 1977 under Section 412 of the Indian Penal Code. They were, however, acquitted but these two appellants of S. T. No. 87 of 1977 were found guilty and convicted and sentenced as above, hence this appeal. The appellants were charged-sheeted and tried along with other accused of Session Trial No. 73 of 1977 under Section 412 of the Indian Penal Code. They were, however, acquitted but these two appellants of S. T. No. 87 of 1977 were found guilty and convicted and sentenced as above, hence this appeal. ( 3 ) ON behalf of the appellants the fact of the occurrence and that during the course of dacoity Ram Charan was killed have not been disputed. We have perused the prosecution evidence of Som Dutt (P. W. 1), Bhola (P. W. 2) and Sukkha (P. W. 4), the three eye witnesses and the post-mortem report etc. and we, therefore, hold that the factum of occurrence no doubt stands fully proved. On behalf of the appellants it was argued by the learned counsel that the identification evidence against Heera Lal and the recovery evidence of the Petromax from the possession of Ram Saran was not credible and they were, therefore, entitled to be acquitted. ( 4 ) WE first proceed to discuss the prosecution evidence against Heera Lal. As stated above there is identification evidence of three witnesses, namely, Som Dutt (P. W. 1), Bhola (P. W. 2) and Sukkha (P. W. 4) but neither of them is an inmate of the house where the dacoity had taken place. They are neighbours. Som Dutt (P. W. 1) has stated that he was sleeping at the main door of the outer sahan of the house of Ram Charan and at about mid night feeling the presence of the dacoits he got up. Then he had raised an alarm. That on the roof of Chbedi some heap of Sarpat was lying wherein fire was lit, as a result of which the whole area was profusely illuminated and when the dacoits were leaving they saw their faces. He has also stated that some of the dacoits carried torches with them which they were flashing occasionally. In his F. I. R. he had not stated that the dacoits were flashing torches when they escaped. He has simply stated that in the light of the fire the faces of the dacoits were seem. In his cross examination he has also stated that it was a moon lit night. But he further stated that it was the time of setting of the moon. He has simply stated that in the light of the fire the faces of the dacoits were seem. In his cross examination he has also stated that it was a moon lit night. But he further stated that it was the time of setting of the moon. This fact was also not mentioned in the First Information Report. ( 5 ) AS regards the F. I. R. he admitted that he was an educated person but he still got the report scribed through Kanhai. This fact need not have been men-tioned in this judgment but for the fact that Bhola (P. W. 2) in his crossexamination stated that the report was written by the Daroga after consultation and there were other police personnel also at that time and that the police had told him that he was also mentioned as a witness and he would have to got to Fatehpur to give evidence. In view of the statement of Bhola (P. W. 2) the learned Counsel strenuously emphasised that the F. I. R. looses its sanctity. However, in the present case wherein the appellants are not named in the F. I. R. and there is evidence of identification only, the fact that the First Information Report was subsequently got written after consultation with the Investigating Officer is indeed of no consequence. ( 6 ) SOM Dutt (P. W. 1) had at the test parade correctly picked up both Heera Lal and Ram Saran but he committed two mistakes in the parade of Shamshad and Wali Ullah cc -. accused on the same day. Learned Sessions Judge has, therefore, rightly not placed reliance of his identification evidence. Bhola (P. W. 2) as well as Sukkha (P. W. 4) however had not committed any mistake in the test parade on that day and both had correctly picked up both these appellants. In the court only Bbola (P. W. 2) correctly pointed out Heera Lal to be one of those dacoits whom he had seen at the time of occurrence of dacoity at the house of Ram Charan and thereafter at the test parade. However, Sukkha (P. W. 4) did not point out appellant Ram Saran to be one of those dacoits. In the court only Bbola (P. W. 2) correctly pointed out Heera Lal to be one of those dacoits whom he had seen at the time of occurrence of dacoity at the house of Ram Charan and thereafter at the test parade. However, Sukkha (P. W. 4) did not point out appellant Ram Saran to be one of those dacoits. Thus identification evidence against Ram Saran being of a, single witness, he has not been convicted by the learned Trial Court under Section 396 of Indian Penal Code and has acquitted him thereon. The State Government has not preferred any appeal against the acquittal of appellant Ram Saran under Section 396 of the Indian Penal Code and, therefore, the identification evidence has to be considered only in respect of appellant Heera Lal. ( 7 ) LEARNED counsel for the appellant pointed out that there was not sufficient light in which the witnesses could see the faces of the appellant; that no doubt according to the prosecution there was light of the fire of Sarpat on the roof of Chhedi but there was no evidence of the witness who had lit the fire. It is true that neither of the prosecution eye witness has deposed that he had lit the fire. Even Chhedi on whose roof the Sarpat was lying and was set to fire has not been examined but on behalf of the defence in the cross examination of all the eye witnesses it was not challenged that there was no light of the fire of Sarpat at that time. The Investigating Officer Jwala Prasad, S. I. (P. W. 5) was entrusted with Investigation and reached at the scene of occurrence and has deposed that he had made local inspection of the scene of occurrence and from the roof of Chhedi had recovered some sample ash from the heap of ash lying there. He had also proved Ex. Ka-9 memo regarding recovery of the ash. That apart, the testimony of S. I. Jwala Prasad (P. W. 5) stands uncontroverted. In that view of the evidence it would not be proper to reject the prosecution evidence that there was light of the fire of Sarpat on the roof of Chhedi which could enable the witnesses to see the faces of the dacoits. That apart, the testimony of S. I. Jwala Prasad (P. W. 5) stands uncontroverted. In that view of the evidence it would not be proper to reject the prosecution evidence that there was light of the fire of Sarpat on the roof of Chhedi which could enable the witnesses to see the faces of the dacoits. It was next urged that from the prosecution evidence it was not specifically established that both these witnesses had got sufficient opportunity to have clear impression of the contours of the faces of the dacoits to enable them to subsequently identify the dacoits at the test parade. Bhola (P. W. 2) has stated that he was sleeping at his Khalihan. On hearing the gun shot he went towards the house of Ram Charan and stood at the door of the house of Chhedi Morai; that besides him Sukkha, Chedu, Vishal, Bhola Singh, Som Dutt were also there. He noted that dacoity was taking place in the house of Ram Charan; that when the heap of Sarpat on the roof of Chhedi were set to fire the whole area was profusely illuminated and then thevillagers also threw brick bats then the dacoits escaped from the northern gate of the house of Ram Charan; that there were 10-11 dacoits, some were armed with gun, some with Tamanchas, some with lathis; that he had seen the dacoits in the light of fire and also the light of the moon. In his cross examination he, however, admitted that he had not told the Investigating Officer that there was light of the moon also and it was for the first time in the court he deposed that there was moon light. It was not the prosecution case that there was moon light at that moment. We have no doubt that the light of the fire even in the absence of the light of the moon was sufficient to see the faces of the dacoits. In his crossexamination Bhola (P. W. 2) has further stated that the dacoits were not running but left walking leisurely and none of them chased them. While earlier in his examination-in-chief he had stated that the dacoits had taken to their heals (Badmash Shor Par Wa Roshni Hone Par Ram Charan Ke Makan Ke Uttar Darwaze Se Nikal Kar Bhage ). While earlier in his examination-in-chief he had stated that the dacoits had taken to their heals (Badmash Shor Par Wa Roshni Hone Par Ram Charan Ke Makan Ke Uttar Darwaze Se Nikal Kar Bhage ). That apart, towards the end of his cross examination he has further stated that the First Information Report was recorded after due consultation and in the First Information Report it was not mentioned that the dacoitc; had left leisurejy but it was mentioned that the dacoits had taken to their heals (Badmash Shman Loot Kar Bhag Gaye. ). Sukkha (P. W. 4), the other witness who had identified Heera Lal and whose evidence had also been believed by the Trial Court has deposed that on hearing the alarm regarding the occurrence, he had also reached there. He saw that there was light of the fire of Sarpat; that there was also torch light; that he had been the faces of the dacoits; that he had identified this appellant in the jail and he also correctly identified him in the court. He also stated that he did not know the appellant from before. In his cross-examination he has stated that it was dark night and besides the light of fire of Sarpat there was no other light. He has further stated that he could not name the other witnesses who had reached there and in his own wards Gaon ke mai un gawahon ke nam nahi bata sakta jo ush samai maujood the bhagdar machi thi. mai bhi mauke par ruka nahi. Mai bhagdar me aaya aur phlr bhaga. Subsequently he has further deposed Ush bhagdar main muljiman wa dakaito ke chehre saph nahi diklrai parte they. Dakaiti ke atank ke karan mai bhi ghabraya hua tha. In the. end of his cross-examination he had further stated Mainey dakuon ko bhagte hue 50 gaj ke phasle se dekha tha. Ush samay sab dakuaon ki peeth mere samne thi. ( 8 ) IN view of the above specific statements of the witness it was rightly argued on behalf of the appellant that no reliance should have been place on his identification testimony as the witness according to his own admission did not have sufficient opportunity to have any clear impression of the faces of the dacoits to enable him to identify them at the test parade. ( 9 ) AS regards the identification testimony of Bhola (P. W. 2) also it was urged that according to Bhola (P. W. 2) also all the witnesses including him and Sukkha were standing at the door of Chhedi. Bhola (P. W. 2) has not given the distance while according to Sukkha the distance in between the place where they were standing and the place from where the dacoits had escaped was about fifty yaids. The Investigating Officer has also mentioned in the site map (Ex. Ka-11) that the distance was about 15 paces. However, in his statement on oath Jwala Prasad, S. I. (P. W. 5) did not state that he had himself measured the distance and the same was fifteen steps that apart, if he had indeed measured the distance himself he would not have described it about 15 steps but would have given definite distance. From the gap it is clear the place where the witness were keeping themselves concealed they could either see the side or back of the dacoits as according to the witnesses the dacoits had left straight to the north. Under the circumstances the identification testimony is indeed not free from suspicion. ( 10 ) THAT apart, on behalf of the defence evidence was also led to show that the witnesses already knew the appellants. They were residents of the adjoining village. Both these appellants are residents of village Dariyapur, P. S. Sultanpur Ghosh. It was specifically put to the witnesses that Dariyapur was adjoining to their village near to it. But both of them denied to have seen or ever gone to Dariyapur. On behalf of tbe defence, Jag Narain Misra, (D. W. 1) Nazit of Tehsil Khage, district Fatehpur was examined who brought the map of the village, and on seeing the map he stated that according to the map villages Mohammadpur Gaiti and Dewara were situated within two miles. Chedi Lal (D. W. 2) resident of village Dariyapur stated that he was resident of village Dariyapur; that he has tlrirty Bighas of land; that Dariyapur was a hamlet of Mohammadpur Gaiti; that both appellants Heera Lal and Ram Saran were residents of village Dariyapur; that village Dewara was at a distance of half mile only from his village. Chedi Lal (D. W. 2) resident of village Dariyapur stated that he was resident of village Dariyapur; that he has tlrirty Bighas of land; that Dariyapur was a hamlet of Mohammadpur Gaiti; that both appellants Heera Lal and Ram Saran were residents of village Dariyapur; that village Dewara was at a distance of half mile only from his village. He has further stated that in Mohammadpur Gaiti market is held on Tuesday and Friday wherein people of nearby villages come to make purchases. In his cross-examination he has stated that he was a neighbour of accused Heera Lal and Ram Saran. He, therefore, knew them very well. He was subjected to cross-examination at length even then his statement that Dariyapur was a hamlet of Mohammadpur Gaiti was not challenged, that shows that Dariyapur is hamlet of village Mohammadpur Gaiti and is within a radius of two miles from village Dewara were the occurrence had taken place according to the Government map. ( 11 ) EVEN if the above defence evidence is not considered the identification testimony of Bhola (P. W. 2) and Sukkha (P. W. 4) against this appellant Heera Lal, as discussed above js also not free from suspicion and should not be held sufficient to base his conviction for the offence under Section 396 of the Indian Penal Code and therefore he is entitled to be acquitted. ( 12 ) AGAINST Ram Saran, Apellant, for his conviction under Section 412 of Indian Penal Code, there is evidence of Pramod Shanker Srivastava, S. I. (P. W. 11) that on 2nd June, 1976 while he had gone along with some constables including Amar Bahadur Singh, Jai Narain Singh and others to apprehend the accused of another dacoity case and was returning at about 10. 30 a. m. at the tube well of Imam Ali on the Mughal Road he got information from a mukhbir that two persons involved in a case under Section 396 of the Indian Penal Code were coming with the looted property for its disposal He then collected the witnesses from the tube well and then succeeded in apprehending the appellants. Ram Saran and Heera Lal and from the possession of appellant Ram Saran a Patromax on which the name of Kashi Prasad was engraved was recovered. He seized the Patromax (Ex. 3) through Recovery Memo (Ex. Ka-19 ). Ram Saran and Heera Lal and from the possession of appellant Ram Saran a Patromax on which the name of Kashi Prasad was engraved was recovered. He seized the Patromax (Ex. 3) through Recovery Memo (Ex. Ka-19 ). In his cross-examination he admitted that he did not prepare any site map regarding the scene of occurrence from where he had apprehended the appellant with the Patromex. He further stated he was told by the Investigating Officer that the name of Kashi Prasad engraved on the Patromex was of the complainant. However, there is no evidence of the Investigating Officer, Abdul Bashir Khan (P. W. 7) that he had told S. I. Pramod Shanker Srivastava that on the looted Patromax the name of Kashi Prasfd was engraved and how and frpm whom he bad learnt as in the First Information Report it was not so describe. Hence the defence suggestion that the name of Kashi Prasad was subsequently got engraved after the alleged recovery may not be without any force. ( 13 ) THE other witness of the recovery Naeem Uddin (P. W. 8) has stated that he was at the Olatti of Imam Ali near his tube well. He was picked up by the Investigating Officer and the constable and that his presence from the hand of Ram Saran a Patromax was recovered and that he bad signed the memo (Ex. Ka-19 ). He further stated that on the Patromax name of Kashi Prasad was engraved in Hindi. In his cross-examination he stated that on the Patromax the name of Ram Olaran was engraved; that he has studied upto sixth class and he could read Hindi not Urdu; that he had seen from his own eyes the name of Ram Charan: However, when the witness was re-examined by the prosecution with the courts permission he admitted that he bad by. mistake stated that name of Ram Olaran was engraved and further stated that the name of Kashi Prasad was engraved. ( 14 ) ON behalf of the appellant it was next contended that. this Patromax was not put up for identification probably because the name of Kashi Prasad was engraved thereon but in the First Information Report it was not mentioned that the name of Kashi Prasad was engraved od the Patromax which was taken away by the dacoits. ( 14 ) ON behalf of the appellant it was next contended that. this Patromax was not put up for identification probably because the name of Kashi Prasad was engraved thereon but in the First Information Report it was not mentioned that the name of Kashi Prasad was engraved od the Patromax which was taken away by the dacoits. Gaya Prasad (P. W. 3) son of Ram Charan, deceased who identified the Patromax (Ex. 3), at the time of evidence has also not deposed that he had already told the Investigating Officer that the Patromex which was stolen by the dacoits was bearing name of Kashi Prasad nor the Investigating Officer has stated that he knew that on the Patromax taken away in the dacoity the name of Kashi Prasad was engraved. Under the circumstances it was necessary that the Patromax should have been put up for identification after having been mixed with other Patromex and concealing the name of Kashi Prasad engraved thereon. No such step was taken by the Investigating Officer and, therefore, the prosecution evidence that this Patromax was recovered from the possession of Ram Saran and it was looted by the dacoits also is not free from suspicion and, therefore, the conviction and sentence of appellant Ram Saran under Section 412 of the Indian Penal Code are also liable to be quashed. ( 15 ) THE conclusion, therefore, is that the appeal of Heera Lal against his conviction and the sentence under Section 396 of the Indian Penal Code to life imprisonment and of Ram Saran against his conviction and sentence under Section 412 of the. Indian Penal Code to ten years, R. I. is hereby allowed and their convictions and sentences under Sections 396 and 412 of the Indian Penal Code are quashed. They are already on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. .