Judgment S.N.Mishra, J. 1. These three appeals arise out of the judgment and order dated 26.4.1988, passed by the 1st Additional Sessions Judge, Aurangabad in Sess. Tr. No. 1/87/87 of 1985 and as such have been heard together and are being disposed of by this common judgment. All the appellants have been found guilty of the charges under Section 395 of the Section Indian Penal Code and were sentenced to undergo rigorous imprisonment for ten years. The appellants were found not guilty of the charges framed under Section 27 of the Arms Act as the appropriate authority has not accorded sanction for the prosecution of the appellant for the offence punishable under Section 27 of the Arms Act. 2. The prosecution case in short is that in the night of 30-31 May, 1984 at about 1.30 a.m. the informant Jagnarain Singh, P.W. 14 and the inmates of the family were sleeping in their house. P.W. 1 Ram Naresh Singh, the brother of the informant and Ramsagar Singh, and his father were also sleeping outside the house. At about 2 a.m. the informant heard some India raised by his brother and father, he suspected that some dacoits had come. He saw them in the torch light. He wanted to flee away, but in the meanwhile the accused caught hold of him, his brother Ram Naresh Singh and their father and took them towards the Angan. It is alleged that, thereafter, the dacoits assaulted his father with dagger and asked him to show the valuables in the house. It is alleged that the dacoits had also assaulted his father with a shoe as a result of which his two teeth were broken and fell down on the ground. His brother Ram Naresh Singh, P.W. 1 was also assaulted with a dagger and the ladies were assaulted with fists and slaps. It is alleged that some of the dacoits entered into the house and took away the valuables including ornaments etc. it is alleged that in course of dacoity, the informant Jagnarain Singh, P.W. 14 and brother Ram Naresh Singh, P.W. 1 both had identified the accused Krishna Tiwari in the light of the lantern, which was burning at that point of time. It is alleged that the informant and his brother along with other witnesses have also identified some of the criminals by their face. It is alleged that the informant and his brother along with other witnesses have also identified some of the criminals by their face. The dacoits took away several articles from the house such as clothes, ornaments etc. It is further alleged that after committing dacoity, while they were fleeing away, the villagers chased them and ultimately the accused Janardan Bharti and Bhuneshwar Bharti were apprehended along with the looted articles. It is alleged that on the same night the dacoity were also committed in the house of Suraj Mahto of Village Dhanauti and Jagdish Singh, Narayan Singh, Alakh Mahto and Keshnath Mahto of Village Makhara. It may be mentioned here that the Makhara is a Tola of village Dhanauti. These two appellants namely Janardan Bharti and Bhuneshwar Bharti has filed separate appeal being Cr. Appeal No. 209 of 1988. P.W. 1 Ram Naresh Singh, P.W. 2 Ramsagar Singh and P.W. 8 Lalan Singh have identified the accused Kedar Bharti in the Test Identification Parade and P.W. 2 Ramsagar Singh, P.W. 3, Muneshwar Singh and P.W. 14, Jag-narayan Singh are alleged to have identified the accused Sheodayal Bharti in the Test Identification Parade. On the basis of the allegations aforesaid a case was lodged by the informant, P.W. 14 against one named accused Krishna Tiwary which was registered as Barun P.S. Case No. 85 of 1984. 3. Krishna Tiwary is the sole appellant in Cr. Appeal No. 198 of 1988. The Sheodayal Bharti and Kedar Bharti are the two appellants in Cr. Appeal No. 199 of 1988. 4. The prosecution has examined altogether 18 witnesses in support of its case. P.W. 1 Ram Naresh Singh is the brother of the informant, P.W. 14, P.W. 2 Ramsagar Singh and P.W. 3 Mungeshwar Singh are the co-villagers of the informant P.W. 4 Jagdish Singh, P.W. 5 Narayan Singh and P.W. 11 Ramchandra Yadav are the resident of Tola Makhara of Village Dhanauti, where the alleged dacoity was committed. P.W. 6 Panchu Singh, P.W. 7 Surajdeo Singh, P.W. 8 Lalan Singh, P.W. 9 Chaku Singh and P.W. 10 Rajdeo Singh are the sons of the aforesaid P.W. 5 Narayan Singh. P.W. 12 Rajkali Devi and P.W. 13 Panapati Devi are the wife and daughter respectively of P.W. 5 narayan Singh. Out of the aforesaid P.Ws. 6, 7, 9, 10, 12 and 13 have been tendered by the prosecution in cross-examination. P.W. 12 Rajkali Devi and P.W. 13 Panapati Devi are the wife and daughter respectively of P.W. 5 narayan Singh. Out of the aforesaid P.Ws. 6, 7, 9, 10, 12 and 13 have been tendered by the prosecution in cross-examination. P.W. 15 Shambhunath Singh is the Judicial Magistrate, who held the Test Identification Parade, P.W. 16 Suman Kumar is the Circle Officer of Barun, who held the Test Identification Parade of the articles recovered from the possession of the respective accused persons. P.W. 17 Sabir Ahmad is the officer-in-charge of Barun Police Station and the last P.W. 18 Muniram is the Investigating Officer of the instant case. The trial Court on consideration of the evidence both oral and documentary has convicted the accused appellants in the manner as stated above. 5. Mr. Ramakant Sharma, learned counsel appearing on behalf of the appellant Krishna Tiwary has assailed the judgment and order of the trial Court and submits that the alleged identification of the appellant is doubtful, inasmuch as, according to the prosecution, the sole means of identification is the lantern which was burning at that time, but the said lantern had neither been seized nor produced before the Investigating Officer. It is further submitted that in this case there is no independent witness of the occurrence except the informant and his brother namely P.W. 1. It is submitted that his father, who is alleged to have been assaulted by the criminals, has neither been examined nor he has disclosed the name of these appellants till the lodging of the First Information Report. It is further submitted that this appellant has been implicated on account of the enmity. He was known to the informant from before and even then he has not been alleged to have concealed his face while committing the alleged dacoity. The submission of Mr. Sharma is well founded. The alleged identification of the appellant Krishna Tiwary is doubtful. That apart, except the informant and his brother, P.W. 1, none of the other witnesses has named this appellant as one of the criminals, on the contrary the witnesses have said that they have seen the appellant chasing the criminals with other villagers. As stated above, the appellant Krishna Tiwary is a co- villager and very well known to the informant. It further appears that this appellant was on enemical term with the family of the informant. As stated above, the appellant Krishna Tiwary is a co- villager and very well known to the informant. It further appears that this appellant was on enemical term with the family of the informant. Generally if the co-villager intends to commit dacoity in the village and that too in a house, having prior enmity, conceal the face. But in the instant case there is no such allegation that he was concealing his face. As stated above, there is not a single independent witness who has come forward to prove the prosecution case so far this appellant is concerned. In the facts and circumstances of this case, it would not be proper to sustain the conviction of this appellant. 6. Having regard to the nature of the evidence adduced on behalf of the prosecution, I am of the view that the prosecution has not been able to prove the involvement of this appellant Krishna Tiwary in the offence alleged. Had he been one of the members of the dacoits, that father of the informant who has been assaulted must have disclosed the name of this appellant as well. That, apart, the sole means of identification namely the lantern has neither been seized nor produced before the Investigating Officer, which cast doubts on prosecution case regarding the identification of this appellant. That apart not a single independent witness except the informant and his brother has come to support the involvement of this appellant Krishna Tiwary in the offence alleged. 7. I have heard learned counsel for the appellant Krishna Tiwary, perused the materials on the record including the judgment under challenge in this appeal. I am of the view that the prosecution has not been able to prove the case beyond all reasonable doubts and accordingly the benefit of doubt is given to the appellant Krishna Tiwary. In this view of the matter, the Judgment and order passed by the trial Court so far appellant Krishna Tiwary is concerned, is set aside and the appeal is allowed. 8. Mr. Rana Pratap Singh, learned Senior counsel appearing on behalf of the appellants Sheodayal Bharti and Kedar Bharti has submitted that the appellants Sheodayal Bharti and Kedar Bharti were not named in the First Information Report and further the sources of identification is doubtful as the alleged lantern has neither been produced before the I.O. not it has been seized. Mr. Rana Pratap Singh, learned Senior counsel appearing on behalf of the appellants Sheodayal Bharti and Kedar Bharti has submitted that the appellants Sheodayal Bharti and Kedar Bharti were not named in the First Information Report and further the sources of identification is doubtful as the alleged lantern has neither been produced before the I.O. not it has been seized. It in submitted that there is not an iota of evidence on record to connect these appellants with the offence alleged. It is submitted that for the first time these two appellants have been identified by the witnesses in the Test Identification Parade. 9. Learned counsel appearing on behalf of the appellant Janardan Bharti and Bhuneshwar Bharti assailed the judgment of the trial Court on the ground that there is nothing on the record to suggest that these appellants were apprehended while committing the dacoity and/or fleeing away. It is further allegation that none of the witnesses examined immediately by the Investigating Officer during the course of investigation has disclosed the name of these appellants. It is then submitted that the alleged identification of the appellants is wholly illegal as after having remained in jail for long tenure the alleged identification has been held and, as such it has no legal value in the eve of law. The learned counsel for the State has not controverted the submissions of the learned counsel for the appellant. On the contrary he concedes to the argument of the learned counsel for the appellant. Admitted position is that these appellants were neither named in the F.I.R. nor has been apprehended during the course of committing dacoity and/or fleeing away. These two appellants can not be connected on the basis of the alleged identification which has been held after much delay. 10. As stated above, the appellants are not the named accused in the First Information Report. Subsequently, the appellant Sheodayal Bharti has been identified by three witnesses namely P.W. 2 Ram Sagar Singh, P.W. 3 Muneshwar Singh and P.W. 4 Jag Narain Singh. The trial Court on consideration of the materials, has rejected the evidence of P.Ws. 2 and 3 on the point of identification. Similarly appellant No. 2 Kedar Bharti has been identified by P.W 1 Ram Naresh Singh, P.W. 2 Ram Sagar Singh and P.W. 8 Lalan Singh, the trial Court has rejected the evidence of P.Ws. The trial Court on consideration of the materials, has rejected the evidence of P.Ws. 2 and 3 on the point of identification. Similarly appellant No. 2 Kedar Bharti has been identified by P.W 1 Ram Naresh Singh, P.W. 2 Ram Sagar Singh and P.W. 8 Lalan Singh, the trial Court has rejected the evidence of P.Ws. 2, 3 and 8 and convicted the appellant Sheodayal Bharti and Kedar Bharti relying upon the evidence of P.W. 14 the brother of the informant. As stated above the submission of Mr. Rana Pratap Singh, learned Senior counsel has not been disputed and/or controverted by the learned counsel for the State and he has categorically stated that there is nothing on the record to connect these appellants except the identification of the informant, P.W. 14 and P.W. 1 his brother Ram Sagar Singh. The manner in which the appellants alleged to have identified by the informant and his brother seems to be doubtful. Accordingly, it would not be safe to sustain the conviction of the appellants on the single identification and, that too by a highly interested witness. 11. Now coming to the Cr. Appeal No. 209 of 1988 wherein Janardan Bharti and Bhuneshwar Bharti are the two appellants, having regard to the submissions made on behalf of the appellants Janardan Bharti and Bhuneshwar Bharti, it has to be seen whether the prosecution has been able to prove its case so far these two appellants are concerned. As stated above these two appellants were apprehended by the villagers on chase and recovered certain stolen articles from their possession which has been identified by the inmates of the house in the Test Identification Parade. That apart P.W. 14 has stated that he along with other witnesses chased and ultimately succeeded in apprehending them while fleeing away after committing dacoity. The other witnesses examined has fully supported the evidence of P.W. 14, the informant and has stated that the appellants have been apprehended on chase and certain stolen articles were recovered from their possession. They have further stated that the appellants along with the seized articles were brought to the Police Station. P.W. 1 Ram Naresh Singh has stated in this evidence that the dacoits started fleeing away after committing the dacoity from his house and on hulla being raised, the dacoits were chased by the villagers. They have further stated that the appellants along with the seized articles were brought to the Police Station. P.W. 1 Ram Naresh Singh has stated in this evidence that the dacoits started fleeing away after committing the dacoity from his house and on hulla being raised, the dacoits were chased by the villagers. He has stated that when he returned back he came to know that his brother namely the informant and others caught hold of two dacoits near the village English and certain stolen articles were recovered from their possession. P.W. 4 Jagdish Singh has identified these appellants Janardan Bharti and Bhuneshwar Bharti in the Court as well. From the evidence on record, it has been fully established that these appellants have been apprehended by the informant and other witnesses and certain articles were recovered from their possession which has been identified by the witnesses. P.W. 4 has also identified these appellants in dock. 12. After having heard the learned counsel for the appellants and going through the material on record including the judgment and order under challenge i an of the view that prosecution has not been able to prove its case beyond all reasonable doubt so far the appellants Krishna Tiwary, Sheodayal Bharti and Kedar Bharti are concerned and accordingly they are given benefit of doubt. However, for the reasons stated above the prosecution has been able to fully establish its case as against appellant Janardan Bharti and Bhuneshwar Bharti. In the result the conviction of appellant Krishna Tiwary, Sheo Dayal Bharti and Kedar Bharti is set aside, consequently the Cr. Appeal No. 198 and Cr. Appeal No. 199 of 1988 is allowed, whereas the conviction of appellants Janardan Bharti and Bhuneshwar Bharti is upheld. 13. After the order has been dictated, it is submitted that Janardan Bharti and Bhuneshwar Bharti in Cr. Appeal No. 209 of 1988 are in jail for about five years. Having regard to the fact that this is an old case of 1984 and having further regard to the fact that the appellants remained in jail for about five years, it is not desirable at this stage to sent them to jail custody. Accordingly while affirming the order of sentence passed by the trial Court I reduce the period of sentence already undergone by these appellants. With this modification in the order of sentence, the Cr. Accordingly while affirming the order of sentence passed by the trial Court I reduce the period of sentence already undergone by these appellants. With this modification in the order of sentence, the Cr. Appeal No. 209 of 1988 is dismissed".