KUNDAN SINGH, J. ( 1 ) THIS appeal has been preferred against the judgment and order dated 25th November, 1980 passed by Sri P. K Dixit, the then IV Additional Sessions Judge, Bareilly, whereby the appellants have been convicted and sentenced to five yearst rigorous imprisonment under Section 394 of the Indian Penal Code (IPC ). ( 2 ) THE prosecution case, in brief, is that the robbery was committed at about 12/1 in the intervening night of 27128th December 1978 at the house of Rama Shanker in village Basant Nagar, police station Devernia, district Bareilly. At the relevant time 3 or 4 miscreants entered the house of the complainant after scaling the wall, where a lantern was burning. His mother was sleeping towards Kuthia. On the other side of the Kuthia, the complainant and his maternal cousin, Ram Prakash, were sleeping. His mother cried that the miscreants had come. The complainant and his cousin attracted to the cry of his mother and saw the miscreants were dragging outside. Both of them were searching valuables from the Kuthia. The complainant and his cousin started assaulting the miscreants. One of the miscreants gave a blow on his shoulder with a karchhul. The other miscreants assaulted his cousin with lathi. The inmates of the house sustained injuries. The miscreants looted various articles including a petromax, wrist-watch, dan, bed-sheet and two ladies dhotis. The witnesses claimed to have identified the accused persons in the light of lantern. ( 3 ) A first information report was lodged by Rama Shanker at 5. 15 a. m. on 28. 12. 1978 at Police Station Devarnia, district Bareilly, pursuant to which the case was registered in the presence of S. I. R. C. Pandey, P. W. 3. He was entrusted with the investigation of the case. He recorded the statements of Rama Shanker, Smt. Ram Pyari and Ram Prakash under Section 161 of the Code of Criminal Procedure (Cr. P. C.) at the police station itself. Then he proceeded to the place of occurrence. He inspected the venue and prepared a site-plan. He recovered certain articles at the place of occurrence and prepared relevant memos. ( 4 ) SHEKHAWAT appellant was arrested at 10-50 Hrs. on 04. 01. 1979. At his pointing out, some articles were recovered, which were said to have been looted in the robbery. Chhotey, appellant, was also arrested at 10. He inspected the venue and prepared a site-plan. He recovered certain articles at the place of occurrence and prepared relevant memos. ( 4 ) SHEKHAWAT appellant was arrested at 10-50 Hrs. on 04. 01. 1979. At his pointing out, some articles were recovered, which were said to have been looted in the robbery. Chhotey, appellant, was also arrested at 10. 30 a. m. on the same day and some looted articles were recovered at his pointing out. The relevant memos, were prepared. On the same day at about 12. 30 a. m. Ali Bahadur, appellant, was also arrested, but no looted article was recovered at his pointing out. All the three appellants were kept bapurdah at the place they were arrested. The appellants were put up for identification on 22. 1. 1979 and all the three appellants were correctly identified by Rama Shanker, P. W. 1, and Ram Prakash, P. W. 2, without committing any mistake in the identification test. The investigating Officer after completing other formalities, as usual, submitted charge-sheet against the accused appellants. ( 5 ) THE appellants have been acquitted of the charges leveled against them under Sections 397 and 412 IPC. Hence, I am not dealing with the case in respect of these charges as no appeal has been preferred by the State against the order of acquittal of the accused persons. ( 6 ) THE prosecution has examined only four witnesses in order to prove its case-out of them Rama Shanker, P. W. 1 and Ram Prakash, P. W. 2 are the witnesses of factum of incident. The other two witnesses are of formal nature. ( 7 ) THE accused-appellants pleaded not guilty and denied the prosecution version and stated in their statements recorded under Section 313 Cr. P. C. that Basant Nagar, where the incident is said to have taken place, is at a distance of 1 1/2 miles. They were shown to the witnesses at the police station and they were previously known to the witnesses. ( 8 ) THE learned IV Additional Sessions Judge, Bareilly, after going through the evidence on record, found the appellant guilty of the offences charged with and convicted and sentenced them as stated above. ( 9 ) I have heard learned counsel for the appellants Sri. A. B. L. Gaur and Sri Man Phool Singh, learned Additional Government Advocate. ( 8 ) THE learned IV Additional Sessions Judge, Bareilly, after going through the evidence on record, found the appellant guilty of the offences charged with and convicted and sentenced them as stated above. ( 9 ) I have heard learned counsel for the appellants Sri. A. B. L. Gaur and Sri Man Phool Singh, learned Additional Government Advocate. ( 10 ) LEARNED counsel for the appellants raised twofold contentions-Firstly, the trial Judge has recorded a finding to the extent that the accused persons are living within a radius of two miles from the place of occurrence and it would be a presumption that the accused persons were known to the witnesses hence the conviction and sentence awarded by the court below are not sustainable and bad in law and, secondly, in the present case the identification memorandum has not been proved by any of the witnesses and hence without the proof of identification memorandum no identification evidence can be relied on against any of the accused persons. ( 11 ) IN connection with the first submission, I have gone through the judgment as well as evidence on record. The learned Additional Session Judge has made the following observation - It is no doubt true that the accused have succeeded in proving that their village is at a distance of 2 miles from village Basant Nagar where the robbery was committed. The matter regarding the identification of a person lying within a radius of two miles has been considered by the Division Bench of this Court in the case of Asharfi and Ram Dhani v. State1, relevant portion of which is quoted below: Did the identifier know the accused from before? For reasons which are obvious the identification of an accused who is already known to the identifier is futile, hence the Court must address itself to the question: is there reasonable ground for the belief that the witness knew the accused from before? If the accused happens to belong to his village, identification is useless and his name must be expected to be mentioned in the first information report or shortly after words. If he resides in a place situate within a radius of two miles habitation of the witnesses, it is safe to assume that he was already known. If the accused happens to belong to his village, identification is useless and his name must be expected to be mentioned in the first information report or shortly after words. If he resides in a place situate within a radius of two miles habitation of the witnesses, it is safe to assume that he was already known. T Of course, the principle laid down by the Division Bench of this Court is not applicable to the urban area where persons are living in the adjacent houses or within a short distance. In the present case Ali Bahadur stated before the Magistrate concerned at the time of identification that the witnesses knew him as they are residing in the neighbouring village. Similarly Shekhawat also stated that the witnesses knew him and he had relations in the village of the witnesses. Chhotey also stated that the witnesses knew him because he has relationship in the village of occurrence, i. e. Basant Nagar. The consistent case of the appellants is that the witnesses knew them prior to the incident and they are residing in the village which is within a radius of two miles. Both these villages situate in rural area Hence the presumption raised in the aforesaid decision of the Division Bench is completely applicable to the facts and circumstances of the present case. Where the witnesses are known to the accused persons no weight can be given to their testimony that they did not know them prior to the incident and they had identified them at the time of incident and then in the identification test. ( 12 ) IN support of his second contention, learned counsel for the accused-appellants relied on Full Bench case of this Court, Shea Raj v. State2, in which the precise question was raised in the following words: This case has been laid before this Bench for decision of the question whether the memorandum of identification proceedings held by a Magistrate acting under Section 164 Cr. P. C. is admissible without proof. After discussion Justice Desai, the then Chief Justice, in paragraph 12 returned the answer in negative. Hon ble B. D. Gupta, J. observed in the following words: IJ have had the advantage of reading the elaborate reasons given by my Lord the Chief Justice and brother Jagdish Sahai in support of the opinion recorded by them. After discussion Justice Desai, the then Chief Justice, in paragraph 12 returned the answer in negative. Hon ble B. D. Gupta, J. observed in the following words: IJ have had the advantage of reading the elaborate reasons given by my Lord the Chief Justice and brother Jagdish Sahai in support of the opinion recorded by them. I am in respectful agreement with their opinion that the question referred to the Full Bench must be answered in the negative. ( 13 ) LEARNED counsel for the State could not point out that the identification memorandum has been proved either by Magistrate or by any other evidence. If he was not available. ( 14 ) FOR the foregoing reasons, I am of the view that the conviction and sentence recorded by the trial Court are not sustainable in the eye of law and they are liable to be set aside. Accordingly, the appeal succeeds and is hereby allowed. The appellants are acquitted of the charges leveled against them. Their conviction and sentences, as awarded by the court below, are set aside. They are on bail and need not surrender. Their bail bonds are hereby discharged. Appeal allowed. . .