JUDGMENT Mr. G.D. Dube, J. - These two appeals have been preferred against the judgment and order dated 9.5.1979 passed by the Second Additional District and Sessions Judge, Budaun, in Sessions Trial No. 247 of 1977, convicting and sentencing each of the appellants (in the two appeals) to undergo imprisonment for life under Section 396 I.P.C. Since these two appeals arise from the same judgment, they are being disposed of by this opinion judgment. 2. Yad Ram (deceased) had two wives, viz., Smt. Shiv Devi (P.W.1) and Smt. Jhaboo (P.W.3). These two wives were living in separate houses in Village Sarram Nagar, P.S. Gunnaur, District Budaun. It is alleged that at 2.30 a.m. in the night between 15th and 16th of April, 1977, eighteen or nineteen bandits entered the house of Snit. Shiv Devi and started assaulting Yad Ram with Ballam amd Spear and looting the valuables. On the alarm of the villagers, Kathoo (P.W.5), the maker of the report, woke up. He opened the house where he and his step-mother. were sleeping. The bandits, after looting the house of Smt. Shiv Devi, entered the house of Smt. Jhabbo, assaulted her and looted the property. Meanwhile, the villagers including Anandi (P.W.6) Nanhu (P.W.7), Nasit (P.W.8), Buddhi, Mahendra and Ram Prasad arrived with their torches. These persons set fire to a heap of Pual. The witnesses are alleged to have recognised the dacoits in the burning light of the lanterns and torches hanging in the two houses. Amongst the recognised accused, Karori and his two sons, namely, Badan Singh and Satya Ram were the known persons, whereas the other dacoits were unknown persons. 3. A report of the occurrence was lodged by Nathoo (P.W.5) at 9.25 A.M. on 16.4.1977 at Police-station Gunnaur. The investigation was taken up by Station Officer, Sharma Dutt Tyagi (P.W. 11). The injured Yad Ram was sent to the Primary Health Centre, Gunnaur, District Budaun. It is alleged that Tajeshwar Nath Srivastava (P.W. 15) had recorded the dying declaration of Yad Ram at 10.15. p.m. on the same day. Yad Ram succumbed to his injuries in the same evening. 4. After usual inquest proceedings, the dead body of Yad Ram was sent for post-mortem to the mortuary which was conducted at 9.00 a.m. on 17.4.1977. The doctor found twenty two injuries on his person. There was an incised wound near the left ear. An incised wound 2cm. Yad Ram succumbed to his injuries in the same evening. 4. After usual inquest proceedings, the dead body of Yad Ram was sent for post-mortem to the mortuary which was conducted at 9.00 a.m. on 17.4.1977. The doctor found twenty two injuries on his person. There was an incised wound near the left ear. An incised wound 2cm. X 0.25 cm. X muscle deep was present on the left side chin. One punctured wound was present over the left side upper lips. There were three incised wounds ranging from 3cm. to 1cm. X 1.5cm. on the left side. There was a punctured wounds on the left side neck. A punctured wound was found on the left side chest. There was another punctured wound 1cm. X 0.5cm. through and through on the anterior surface on the left lung. The doctor found that death was caused as a result of shock and haemorrhage due to multiple injuries. 5. Amongst the unarmed accused, Lalta was arrested by the Investigating Officer at 4.30 p.m. on 24th April, 1977 from Babraul, Police Station Gunnaur. On his search Kharus and Panhuchi pari (Exts. 1 and 2 respectively) were recovered from a cloth bundle held in the right hand of the accused. A recovery memo was prepared by Station Officer, Gunnaur. Accused Harpal was arrested on 26th April, 1977 from village Junamai at 11.00 a.m. Accused Dauli was arrested on 14th December, 1977 in the night from village Gufranpur. Other accused persons, viz., Tikaram, Kail Charan and Mahesh were also arrested on different dates. It is' not necessary to give details of the arrest. 6. The test identification was conducted on 31.5.77. In this identification, Nathoo, Smt. Jhabbo and Smt. Shiv Devi correctly identified Kharu and Panhuchi (Exts. 1 and 2) others had committed mistake. The test identification of appellants viz., Lalta, Harpal Dauli and others was conducted on 22.6.1977 in District Jail, Budaun. After completing investigation, the Investigating Officer submitted charge-sheet (Ext. Ka-20) against the appellants and other accused persons. 7. The prosecution had examined seventeen witnesses in all. These witnesses, namely, Smt. Shiv Devi (P.W.1), Smt. Jhaboo (P.W.3), Nathoo (P.W.5), Anandi (P.W.6), Manhoo (P.W.7), and Nasit (P.W.8) were eye-witnesses. The remaining witnesses were formal. 8. The accused had pleaded not guilty to the charges levelled against them. The accused had alleged that they had been implicated falsely due to enmity. The prosecution had examined seventeen witnesses in all. These witnesses, namely, Smt. Shiv Devi (P.W.1), Smt. Jhaboo (P.W.3), Nathoo (P.W.5), Anandi (P.W.6), Manhoo (P.W.7), and Nasit (P.W.8) were eye-witnesses. The remaining witnesses were formal. 8. The accused had pleaded not guilty to the charges levelled against them. The accused had alleged that they had been implicated falsely due to enmity. However, the appellants had alleged that the witnesses know them from before and they were also shown to the witnesses. One Jafar Ali was produced as a defence witness. He had deposed about Mahesh Pal was acquitted by the lower Court. The learned Sessions Judge believed the prosecution story regarding the named of accused and appellant of appeal No. 1574 who had been sent for trial on the basis of identification evidence. 9. The learned Counsel for the appellant has challenged the very veracity of dying declaration. It was alleged that the identity of person whose dying declaration was recorded was not established by producing the doctor. There is no endorsement on the dying declaration Ext. Ka-27 about the identity of Yad Ram. It has been also pointed that the certificate of mental fitness of Yad Ram was recorded of 10.15 a.m. whereas the dying declaration concluded at 10.35. There was no certificate that during statement the injured was in a fit condition. It was urged that keeping in view the nature of injuries of Yad Ram it was not at all probable that he would have been able to speak even. 10. The learned Counsel for the state supported dying declaration on the ground that the doctor and the Magistrate were Government servants. They had no interest in the case. Hence it should be deemed that they acted in a bonafide manner. It was also urged that the Chief Medical Officer, Allahabad be summoned to state his opinion as to whether Yad Ram could be able to make any statement even though he had received 22 injuries on his person. Two injuries on the person of Yad Ram were on the cheek and lips and four were on the neck. The whole recording of dying declaration had proceeded in reverse manner. The doctor ought to have given a certificate of fitness of mental condition of Yadram after the conclusion of recording of the statement. Two injuries on the person of Yad Ram were on the cheek and lips and four were on the neck. The whole recording of dying declaration had proceeded in reverse manner. The doctor ought to have given a certificate of fitness of mental condition of Yadram after the conclusion of recording of the statement. The doctor ought to have stated after recording of the statement that during the recording of the statement of Yadram was in a fit mental condition and able to speak then only any value about certificate could be given. 11. We have great doubt that in the state of serious injuries Yadram would be able to make a detailed statement as contained in Ext. Ka 27. Prosecution has not cared to examine the doctor who had given the certificate at the top of the dying declaration. Even though we summon the Chief Medical Officer of Allahabad no fruitful purpose would be served. His opinion will be based on his book knowledge or experience. Hence it would he more hypothetical. We also do not feel to summon the doctor who had recorded the dying declaration because he had not recorded any certificate at the top of the dying declaration that then the statement was concluded the patient continued in a fit mental state as to enable him to make any statement. 12. It has been pointed out by the learned Counsel for the appellant that smt. Shiv Devi had stated that her grand father Narain had three other brother named Indi Shiv Charan and Desai. Desai had a son Gumani who was issueless, She also stated that Sunder (father of Karori) was sons of Indi. The site plan of the place of occurrence Ex. 12 indicates that the house of Karori is sitatuted just near one of the house of Yadram. There is only one gali three steps wide between the two houses. It is argued by the learned Counsel for the appellant that these named persons residing in adjacent house would not have dared to commit the dacoity in the house of his neighbour without taking precaution to conceal their identity. 13. The learned Counsel for the state urged that from the evidence it transpires that Karori had apprehension that Yadram may inherit properties of Gumani, that is why twenty two injuries were caused on the person of the deceased. 13. The learned Counsel for the state urged that from the evidence it transpires that Karori had apprehension that Yadram may inherit properties of Gumani, that is why twenty two injuries were caused on the person of the deceased. It was argued that the main intention was to kill Yadram and it was coupled with dacoity. The Trial Court has observed in paragraph 37 of the judgment as under : "It is however, clear from the cross-examination of Shiv Devi (P.W.1) that the accused Karori is his cousin and she and her family members could not falsely implicate him and his two sons Badan Singh and Satyatam. She can not be a legal heir of Gumani and as such there is no question of her getting his land but the accused Karori and his sons might be apprehending some action from the side of Yadram in that connection and they could commit his murder on account of that fact. I am, therefore of the view that this case is not of usual type and an exception has to be made in this case in view of the opinion expressed by the Supreme Court in the case of Sita Ram Rai (Supra). In this way I am inclined to believe the prosecution evidence regarding be complicity of accused Karori, Badan Singh and Satya Ram in this case." 14. The learned Trial Court had placed reliance on the view expressed by the Supreme Court in case of Sita Ram by stating that : "In a similar case Sita Ram Rai v. The State of Bihar, 1973 S.C.C. (Crl.) 236, the Supreme Court has observed that however improbable it might appear at the first sight for the accused to have participated in the incident without taking precaution, it is difficult to get over the reliable evidence coming on record. The desperate act on the part of the accused may be due to their antipathy towards the victims. In the instant case the circumstances established on record go the suggest that the intention of the dacoits whosoever, they were not only to loot the valuables from the house of Yad Ram but their intention was also to murder him. This is clear from two circumstances." 15. We are of the opinion that the above observation of the learned Trial Court are not correct. This is clear from two circumstances." 15. We are of the opinion that the above observation of the learned Trial Court are not correct. Anandi P.W.6 has admitted in cross-examination that on the next morning Karori accused was present at his Chauppal. If Karori had the criminal intention to commit a murder and the dacoity then he would not have been present at his Chauppal in the next morning. The fury aroused in the villages on account of this ghastly incident would not have left Karori unhurt. If the witnesses fully knew that Karori and his two sons come for dacoity with murder, then they would have arrested him when he was at his chauppal. 16. It is also noteworthy that Masit, P.W.8 stated that he was present through the dacoity at the place of occurrence. He stated categorically that none of the dacoits were known to him. He admitted in cross-examination that he had seen one or two persons with 'dhatas' (face cover). The learned Counsel for the appellant rightly urged that where some of the dacoits were using dhatas while committing dacoity then it is a highly improbable that the known persons would not be putting dhatas. In this case Karori and his two sons were next door neighbours and also near relative of Yad Ram. In such a situation it was improbable that they would have committed dacoity with their faces open and not covered with a cloth oe mask etc. 17. The First Information Report was lodged at 9.25 a.m. It is stated that the police station was 11 miles away from the place of occurrence. Even then there was ample time for the maker of the report to deliberate over the matter and implicates Karori and his two sons. For the reasons mentioned above we are of opinion that the evidence of the six eye witnesses about these named accused is not at all reliable. Had the dying declaration been of some value then it could be said that the named appellants had committed dacoity. Dying declaration has been wholly misread. The possibility of false implication of the named accused cannot be ruled out. The conviction of named accused cannot be sustained. 18. As regards the appellants convicted on the basis of identification evidence there is a delay of two months 8 days i.e. 68 days. Dying declaration has been wholly misread. The possibility of false implication of the named accused cannot be ruled out. The conviction of named accused cannot be sustained. 18. As regards the appellants convicted on the basis of identification evidence there is a delay of two months 8 days i.e. 68 days. Among the witnesses recognising unnamed dacoits Smt. Shiv Davi (P.W.1) and Smt. Jhaboo (P.W.3) were inside the house. One of the appellants Smt. Jhaboo had identified only Harpal and Dauli. 19. According to the prosecution, witnesses they had assembled towards south of the house of Hori. The Patil heaps were bent toward north of the house of the Yad Ram. The lanterns were burning inside the houses. Their light was not available to the witnesses present outside the houses. In between the houses of Yad Ram and the place of burning Patil houses of Lakhi, Munni, Babu and gher of Yadram intervened. These constructions would have obstructed the light. In these circumstances it is difficult for us to accept that sufficient light would have been falling on the dacoits to enable the witnesses to recognise them. 20. When viewed from the above angle the identification evidence in this case becomes very doubtful. In Shiv v. State of U.P., AIR 1982 S.C. 368, it was held by the Supreme Court that the delay of d2 days makes the identification evidence unacceptable. This case has been relied by Division Bench of this Court in Ram Sunder Pathak v. State of U.P., 1985 All. Crl. Reports 69. In view of the above we are of the opinion that the evidence against the appellants Lalta, Harpal and Dauli based on the identification was not satisfactory as to entail their conviction. 21. There is evidence against Lalta about recovery of two ornaments looted in the dacoity. One of the recovery witnesses Dauli (P.W.9) has not fully supported the factum of recovery. However, Sharma Dutt Tyagi has proved the recovery. We have gone through his statement. There is no reason to disbelieve him. 22. The learned Counsel for the appellant urged that the details of the properties put for identification report. Even the owner had not been able to identify the ornament. 23. Smt. Jhaboo had admitted that the ornaments Ext. Ka-1 and Ka-2 belonged to Shiv Devi. This Shiv Devi had identified the Kharuas correctly, Smt. Jhaboo to had identified the Kharuas correctly. The learned Counsel for the appellant urged that the details of the properties put for identification report. Even the owner had not been able to identify the ornament. 23. Smt. Jhaboo had admitted that the ornaments Ext. Ka-1 and Ka-2 belonged to Shiv Devi. This Shiv Devi had identified the Kharuas correctly, Smt. Jhaboo to had identified the Kharuas correctly. Nathoo P.W.8 had also identified correctly. It was argued that the ornaments had some identifying marks like name of two sons. The Magistrate has stated that no such mark was visible. Consequently there was no necessity of taking any precaution of concealment of these specific marks pasting chips. 24. We have compared the descrip, on of Kharua 1 as mentioned in the recovery memo, identification memo with the description given in First Information Report. The description tally thus the evidence prove beyond doubt that Kharua pain Ext. 1 was looted in the dacoity. 25. The evidence on record establish beyond doubt that the stolen Kharua was recovered from the possession of Lalta. Latta is, therefore, guilty of the offence punishable tinder Section 412 of Indian Penal Code. 26. We have heard the learned Counsel for the appellant on the question of sentences. The learned Counsel for the appellant urged that after 15 years the appellant should not be forced to undergo imprisonment. We have examined the file it transcribed that he was arrested on 21.4.79, he remained in jail atleast upto 22.6.1979. 27. The appeal of Karori, Eadan Singh, Satya Ram, Harpal and Dauli are allowed. Their conviction and sentences under Section 396, I.P.C. are set aside. They are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender. 28. The appeal of Lalta is dismissed. Instead of offence 396 I.P.C. and he is convicted under Section 412 Indian Penal Code and sentenced him to imprisonment for the period already undergone and a fine of 4,000/- (four thousand only). Fine he paid within three months, failing which he shall undergo further rigorous imprisonment for six months.