Judgment : A.B. Srivastava, J. 1. THIS appeal under section 378 of the CrPC has been filed by the State against a judgment and order dated 25-8-1977 of the II Additional Sessions Judge, Allahabad acquitting the two accused of the charge under section 396 IPC. 2. ACCUSED-opposite party Afaq died during the pendency of this appeal and vide order dated 25-3-1991 of the order-sheet, appeal of the said accused-opposite party has been held to have been atabed. Now, in this appeal we are concerned only with accused opposite party Bechan. According to the prosecution story, a dacoity with murder was committed in the night of 15/16-7-1975 in the house of informant Bhagwati Prasad (DW 1), in village Mulinapur within jurisdiction of Police Station Handia, District Allahabad. The docoits, 12-13 in number, raided the house of Bhagwati Prasad and his cousin Baboo (F'W 3). When the dacoits came Bhagwati Prasad was sleeping inside his room, Babboo was sleeping in another room in his house. Pralhad, another cousin, and deceased Ram Janam the nephew of the first informant, were sleeping in different 'chhappars'. The docoits scolded Babboo ;and enquired as to where Bhagwati Prasad was Two or three of them scaling into the house through the ventilator, opened the door and some of them beat Babboo, who raised alarm. There was kept lighted on a 'taakh' in the outer portion of the house a lantern, and two 'chimneys' were buring inside the room. Bhagwati Prasad with his torch ran out to the village and raised alarm, which brought on the scene of occurrence Ram Chandra, Hira Lal, Ram Raj and several others, who taking position behind the north estern corner of house of one Ram Lakhan, watched the dacoits flashing their torches. The dacoits looted property; one of them was armed with a gun, another with an iron rod, and rest had lathis, torches and a 'kulhari'. When Ram Janam tried to struggle he was shot dead. Ram Chandra threw a brickbat, which hurt one of the dacoits. In retaliation, a gun shot was fired causing injuries to him also. 3. AFTER looting the property, the dacoits made good their escape; their faces were seen in the various source of light available on the spot. 4. When Ram Janam tried to struggle he was shot dead. Ram Chandra threw a brickbat, which hurt one of the dacoits. In retaliation, a gun shot was fired causing injuries to him also. 3. AFTER looting the property, the dacoits made good their escape; their faces were seen in the various source of light available on the spot. 4. A written report regarding the incident was lodged by Bhagwati Prasad at Police Station at 6.30 A.M. on 16-7-75 and investigation was started by the Investigation Officer. S.I. Malkhan Singh. The two injured were sent for medical examination. Babboo was found to have four blunt weapon injuries and Ram Chandra had two gun shot and one blunt object injuries. Inquest of the dead body of Raj Mani was made and it was sent for post mortem examination which was conducted on 17-7-1975. Death was found to have been caused due to multiple gun shot injuries. The Investigating Officer prepared site plan of the place of occurrence and also took into possession empty cartridges and blood from the spot and prepared memos of the torches of the informant and the witnesses. Subsequent investigation was conducted by S. I. O. P. Yadav, who on 8-8-1975 raided the house of accused Bechan, who fled away. He was chased and arrested. Making baparda, he was brought at the police station and from there he was sent to the court to be lodged in the Naini Central Jail. On 3-9-1975 on information given by an informer, he arrested appellant Afaq, made him baparda and brought to the police station and kept in the same condition. The next day, he was sent baparda to jail. 5. TEST identification of the two accused was conducted on 8-9-1975 in the jail by Executive Magistrate S. N. Gupta. Accused Bechan was correctly identified by Bhagwati Prasad, Babboo and Prahlad, while Afaq was identified by these three and Ram Chandra. Thereafter charge-sheet was laid against both the accused persons, who were committed to the court of session. 6. BOTH the accused- persons pleaded not guilty to the charges framed and pleaded that they were known to the witnesses from before and were also shown to them after arrest. Thereafter charge-sheet was laid against both the accused persons, who were committed to the court of session. 6. BOTH the accused- persons pleaded not guilty to the charges framed and pleaded that they were known to the witnesses from before and were also shown to them after arrest. Appellant Bechan stated that he was arrested from the district courts on 4-8-1975 when he came out after attending a case, the witnesses were also present with the S.I. He was detained at the police station for four days and shown to the witnesses there also. Before the learned trial court, the prosecution examined PW 1 Bhagwati Prasad, PW 2 Ram Chandra and PW 3 Babboo as eye witnesses of the incident and witnesses of identification. PW 4 S. N. Gupta proved the identification proceedings and the result, PW 5 S.I. Malkhan Singh is the first Investigation Officer, PW 6 Constable Maha Prasad Dubey took accused Afaq on 4-9-1975 to jail baparda, PW 7 Constable Jang Bahadur took Bechan to jail baparda on 8-8-1975, PW 8 took the dead body of Raj Mani to the mortuary, PW 9 Dr. R. B. Singh proved the injuries of the two injured, PW 10 O. P. Yadav is the 2nd Investigating Officer, who had also arrested the two accused persons. 7. THE CW 1 and the DW 1 were examined on the point of distance of Utrao, the village of Afaq, from Mulinapur. 8. THE learned Sessions Judge on a consideration of all the above evidence found the charges against the accused persons not established beyond reasonable doubt and acquitted them In this appeal, learned A.G.A. for the State and Sri L. K. Pandey for accused-opposite party no. 1 Bechan have been heard. 9. AT the very outset it may be mentioned that the defence at no stage in this case, challenged the factum of dacoity, the death of Raj Mani and injuries to Babboo and Ram Chandra in the course of the same. The accused persons of course denied their complicity and participation in the said crime. 10. WE have thus to see whether the evidence led by the prosecution was reliable enough to bring home the charge against appellant Bechan, and the virdict of acuqittal is against the weight of evidence on record. The accused persons of course denied their complicity and participation in the said crime. 10. WE have thus to see whether the evidence led by the prosecution was reliable enough to bring home the charge against appellant Bechan, and the virdict of acuqittal is against the weight of evidence on record. The case against the accused-opposite party being based on identification, the two important questions arising are, whether there was sufficient light and opportunity to the witnesses to see the faces of the dacoits and to identify the accused-respondent no. 1 on its basis. 11. AS far as the question of light is concerned, the first one is stated to be lantern, lighted outside the house of the informant. Although the PW 1 Bhagwati and other witnesses have so stated, their statement does not inspire confidence in so far as Bhagwati Prasad used to sleep inside his house and there could be no reason or occasion to keep a lighted lantern in the 'taakh' outside. AS far as the light of 'Chimni' alleged to be burning inside the room is concerned, it is difficult to believe because in a closed room burning 'chimni' would be suicidal to the inmates. Secondly, the light of the 'chimni' could not be available to PW 1 Bhagwati Prasad and PW 2 Ram Chandra, who saw the incident from outside. Bhagwati Prasad himself stated that he ran out to the village the moment he heard the dacoits taking his name. But for Babboo (PW 3), therefore, none of the three eye witnesses could see the incident from inside to avail to this light. He also, as his statement would show, was assaulted by lathis and was made to sit at one place by the dacoits, as such, he could not have had the opportunity to watch the faces of dacoits so successfully as to identify the accused-opposite party on its basis. He himself stated that the dacoits did not enter into has room second time. 12. AS far as the light caused by flashing of torches is concerned the torches flashed by the dacoits could only have the effect of dazzling the eyes of witnesses. The torches even if occasionally flashed by the witnesses from a distance, could, not in a dark night provide sufficient light to watch the facial features of the miscreants and to identify the accused-opposite parly Bechan on its basis. The torches even if occasionally flashed by the witnesses from a distance, could, not in a dark night provide sufficient light to watch the facial features of the miscreants and to identify the accused-opposite parly Bechan on its basis. The view taken by the learned Sessions Judge regarding lack of proper opportunity to the witnesses ;and non-availability of sufficient light, thus, cannot be said to be one not possible on the evidence on record. This being the position, even if another view may be possible it will not be permissible to interfer with the verdict of acquittal. No doubt, there is complete chain of link evidence regarding the accused having been kept baparda at the police station and from there taken in the same condition to the jail, but the very fact of arrest of accused-opposite party Bechan on 8-8-1975, as stated by the PW 10, appears doubtful. According to the accused-opposite party, he had gone to the Sessions Court, Allahabad in connection with another case on 4-8-1975 where he Was arrested. The fact that the arresting officer was in the vicinity of the courts at Allahabad on 3rd and 4th August, 1975 is proved from his own statement. Under these circumstances, chances cannot be ruled out of accused-opposite party Bechan having been arrested on 4-8-l'975 from near the district courts, itself. It being so, the entire evidence of test identification loses its evidenciary value and agreeing with the learned Sessions Judge, we find the charge under Section 396 of the IPC not having been established beyond reasonable doubts against accused-respondent Bechan. His acquittal, thus, was justified. The appeal against the same has to fail. 13. FOR all the above reasons, this appeal as against accused-respondent no. 1 Bechan, deserves to be, and is hereby, dismissed. He is on bail. His bail bonds are cancelled and sureties discharged. 14. THE appeal in respect of Afaq has already abated. Appeal dismissed.