N. S. GUPTA, J. Hari Lal who was convicted in Sessions Trial No. 180 of 1979 by Sri V. N. Gupta, the then IVth Additional Sessions Judge Gorakhpur un der Section 396, IPC and was sentenced to undergo imprisonment for life and fine of Rs. 500/- and in default of the payment of the same to undergo six months further R. I. as per judgment and order dated 12-2-1980, has come up in appeal before this court. 2. The prosecution case as unfolded by the first informant Hafiz (PW-4) is that on the intervening night of 30-4-79/1-5-79, he was sleeping outside his house situate in village Tendua, police station Pipraich, district Gorakahpur. Some of his family members were sleeping by his side whereas the others were sleeping inside the house. At about 11. 00 p. m. , Hafiz and his other family members woke-up on hearing the sound of gun shot. They raised an alarm. The dacoits who were seven in numbers and were armed with deadly weapons like gun intimidated Hafiz (PW-4), Taj Mohammad (PW-1) Sukhari (PW-3 ). Mohd. Ali, Nabi Husain and Murtuza. They collected all of them at one place and four of the bandits surrounded them. Thereafter some of the bandits broke open the eastern door of the house of the com plainant Hafiz (PW-4 ). They entered into the house. There they started looting arti cles which included a trunk. The bandits looted away wrist watch of Khalil, After committing loot inside the house of the complainant the bandits entered into the house of Murtuza and there too they committed loot and looted away a box. Hearing the nosie Phaujdar (deceased), Bhagwati, Phagu and other villagers of the nearby village of Barua reached at the spot. They had torches which were being flashed by them. They set fire to a thatch. The prosecution claimed that the faces of the bandits were seen by the victims and the villagers in the light of torches and the flames of the fire. The dacoits decamped with the looted property. They were chased by the villagers. On of the bandits opened fire near the electricity transformer. Phaujdar (deceased ). Phagu and Sukhari (PW-3) sustained a number of injuries. The condition of Phaujdar became serious. All these three injured persons were, therefore, taken to Medical College, Gorakhpur where Phaujdar succumbed to his injuries. Hafiz (PW-4) got a report Exh. Ka. They were chased by the villagers. On of the bandits opened fire near the electricity transformer. Phaujdar (deceased ). Phagu and Sukhari (PW-3) sustained a number of injuries. The condition of Phaujdar became serious. All these three injured persons were, therefore, taken to Medical College, Gorakhpur where Phaujdar succumbed to his injuries. Hafiz (PW-4) got a report Exh. Ka. 1 written by Taj Mohammad (PW-1 ). He took the same to the police station Pipraich in the following morning and lodged it there at 8. 10 a. m. The police station Pipraich lay at a distance of about 4 kilometres from the place of occurrence. On the basis of the FIR Exh. Ka 1 Head Constable Lalji Yadav (PW-5) prepared Chik report and G. D. report. 3. S. I. Jogendra Nath Singh (CW-2) who was then working as Sub-Inspector of police at police station Pipraich took up the investigation of the case. He immedi ately rushed to the scene of occurrence and there he recorded the statements of Hafiz (PW-4), Taj Mohammad (PW-1), Khalil, Murtuza, Nabi Husain, Qadir Ali, Rajman and Bhagwati. He inspected the torches of Bhagwati and Rajman Yadav and found them in working condition and prepared Suprudginama C-2 and C-3 in respect of the said torches and handed over the same to Bhagwati and Rajman. He also in spected the ash of the burnt thatch and prepared a memo Exh. C-4 about the same. He carried out a detailed inspection of the scene of occurrence and prepared site plan Exh. C-8. He also recovered two empty cartridges of 12 bore and another cartridge of 12 bore from the spot and prepared recovery memo Exh. C-5 about the same. He thereafter went to Medical College for recording the statements of the injured persons and there he was informed about the death of Phaujdar. The case was thereafter converted into one punishable under Section 396, IPC. 4. Further investigation into the mat ter was taken over by S. I. Abhai Singh (PW-9), who was then working as Station Officer, police station Pipraich. He ar rested the accused appellant Hira Lal on 6-5-79 from near the canal of village Balewa on the basis of some secret information from an informant. He also arrested Ram Bali and recovered some looted property from his possession. He ar rested the accused appellant Hira Lal on 6-5-79 from near the canal of village Balewa on the basis of some secret information from an informant. He also arrested Ram Bali and recovered some looted property from his possession. He immediately made the acused appellant Baparda and lodged him in police lock-up in Baparda condi tion at about 11. 20 p. m. After necessary entries into the G. D. of police station he got a blanket placed over the lock-up of police station and directed the accused appellant to kept his identity concealed because he would be put up for identifica tion. The accused was produced before the remand Magistrate on 7-5-79 by constable Shambhu Singh (PW-6) in Baparda posi tion and after obtaining proper remand the accused appellant was lodged in the dis trict Jail Gorakhpur Baparda. 5. The accused appellant was put up for identification inside the district Jail Gorakhpur on 26-5-79. Jagdeo Singh (C-1) who was then working as Executive Magistrale-cum-Deputy Collector Gorakh pur conducted the identification proceed ings. During the course of identification, Mohd. Khalik, Sukhari (PW-3), Qadir Ali, Taj Mohammad (PW-1) Ramzan and Phagu (PW-2) had correctly identified the accused appellant. After receipt of the re port of the identification S. I. Abhai Singh (PW-9) submitted the charge- sheet against the accused appellant. 6. After committal, the case came up for trial before the Vth Additional Sessions Judge, Gorakhpur who framed charge un der Section 396, IPC against the accused appellant. The accused appellant pleaded not guilty1 and claimed trial. In his ex amination under Section 313, Cr PC he showed his ignorance on the factum of dacoity. He denied his participation in the commission of the dacoity in question and stated that he was arrested by the police from his house on 3-5-79 at about 8. 00 a. m. He pleaded that the police kept him at the police station for about 5-6 days and got him identified by the witnesses. He stated that his photographs were taken and that he was taken to the scene of occur rence by the police officials in a jeep. He told all these things to the Magistrate who conducted the identification proceedings. He further stated that there was a Massa on the left side of his nose. He stated that his photographs were taken and that he was taken to the scene of occur rence by the police officials in a jeep. He told all these things to the Magistrate who conducted the identification proceedings. He further stated that there was a Massa on the left side of his nose. He stated that although at the time of identification that Massa was covered but the police had shown this special feature to the witnesses by fixing a chit thereon. No evidence in defence was adduced by the appellant. 7. The prosecution in support of its case examined as many as 12 witnesses, out of whom Taj Mohammad (PW-1), Phagu (PW-2), Sukhari (PW-3) and Hafiz (PW-4) were the witnesses of fact, who stated about the factum of dacoity in ques tion and further that Sukhari and Phaujdar (deceased) sustained injuries during the commission of the said dacoity and that Phaujdar had ultimatiey died because of the injuries sustained by him in the dacoity in question. 8. PW-5 Head Constable Lalji Yadav was a formal witness who proved Chik report and G. D. reports. PW-6 constable Shambhu Singh look the accused appellant Baparda from police lock-up and produced him Baparda before the Remand Magis trate and after obaining proper remand, he lodged the accused appellant Baparda in district Jail Gorakhpur on 7-5-75. 9. PW-7 Dr. Suresh Chandra who was working as emergency Medical Officer of Medical College Gorakhpur on 1-5-79 examined Phaujdar and Sukhari and he found the following injuries on their per son. Injuries of Phaujdar. (1) One lacerated wound 1 cm. x 1. 2 cm. size oval in shape, present on right side of scalp. 8. 5 cm. lateral to mid line of head. The skin around the wound was charred and black ened. Fresh bleeding present. The wound was 1 cm. deep. , (2) One lacerated wound 1 cm. x 5 cm. size, present on right pinna. It was 2 cm. deep, fresh bleeding present. (3) One lacerated wound, 1. 5 cm. x 2 cm. size, deep upto subcutaneous tissues, present in middle of left upper eye lid. The doctor opined that all the injuries were fresh. Injury Nos. 2 and 3 were simple. Injury No. 1 was kept under observation. X-ray of skull A. P. lateral view was advised. The doctor opined that injury No. 1 was caused by fire arm. Injury Nos. size, deep upto subcutaneous tissues, present in middle of left upper eye lid. The doctor opined that all the injuries were fresh. Injury Nos. 2 and 3 were simple. Injury No. 1 was kept under observation. X-ray of skull A. P. lateral view was advised. The doctor opined that injury No. 1 was caused by fire arm. Injury Nos. 2 and 3 were caused by some blunt object. Injuries of Sukhari. (1) One lacerated wound. 3 x. 2 cm. size present on left side of forehead. The skin was blackened. It was 2 cm. deep. (2) One lacerated wound, 0. 3 cm. x 0. 2 cm. in size and. 2 cm. deep was present on left side of face in lower part. The skin was black ened. (3) Eight lacerated wounds of about. 3 x. 2 cm. size and deep upto subcutaneous tissues were present on anterior aspect of chest at dif ferent places. The skin around was blackened. They were 2 cm. deep. (4) Two lacerated wounds 2 x 1 cm. size present on left1 arm in upper part. It was 2 cm. deep and the skin over and around the wound was blackened. (5) One lacerated wound. 3 cm. x. 2 cm. size present on medical aspect of right thing. It was. 2 cm. deep. The skin around the wound was blackened. (6) Mutiple lacerated wounds. 2 cm. x. 3 cm. size deep upto subcutaneous tissues was present in whole of left lower limb. The skin around the wounds was blackened. The doctor opined that all the injuries were caused by means of a fire arm. They were simple in nature, duration was fresh. 10. PW-8 Dr. K. K. Mai conducted autopsy on the dead body of the deceased on 1-5-79 at about 3. 30 p. m. He found the position as under: The deceased was a young man of average built, aged about 35 years. Rigor Mortis was present in all the fore limbs. No decomposition. The doctor found following ante-mortem inju ries : (1) Stitched operated wound 3" x 1/4" x brain deep on Rt. side head in temporal region 3" above the base of Rt. ear, six stitches were present. (2) Lacerated wound 1/2" x 1/4" through and through the middle part of pinna of Rt. ear blackening and tattooing on margins present. The doctor found following ante-mortem inju ries : (1) Stitched operated wound 3" x 1/4" x brain deep on Rt. side head in temporal region 3" above the base of Rt. ear, six stitches were present. (2) Lacerated wound 1/2" x 1/4" through and through the middle part of pinna of Rt. ear blackening and tattooing on margins present. (3) Lacerated wound 1" x 1/2" bone deep on middle part of Rt. upper eye lid wound of exit margin was everted. 11. On internal examination the doc tor found Haematoma in an area of 4 1/2" x 4" on right temporal region 3" above the part of right ear operating whole in an area of 1" x 1" at right temporal bone. Membrane incised in an area of 1" x 1" below injury. Right frontal lobe of Brain matter was lacerated in an area of 1" x 1" through and through. He found 2 oz. of clotted blood present in the skull of the deceased. Heart was full. The doctor opined that the deceased had died due to comma which resulted due to the aforesaid ante mortem injuries. 12. PW-10 S. I. Gorakh Nath Singh prepared the inquest report in respect of the dead body of the deceased Phaujdar and sent the same for post-mortem exami nation. 13. PW-ll Head Constable Brij Raj Singh stated that on 22-5-70 he was on duty as constable guard of judicial lock-up. He brought the accused appellant Baparda from jail and kept him Baparda in the judicial lock-up and after producing the accused appellant Baparda before the Magistrate he lodged the accused appellant Baparda i 14. PW-12 Galo Singh was the court moharrir of the Court of Addl. Chief Ju dicial Magistrate, Gorakhpur. He stated that when the accused appellant was sum moned for judicial remand from the jail he was brought Baparda and was kept Ba parda in the judicial lock-up and was pro duced before the Magistrate concerned in Baparda position and was remanded to judicial custody Baparda. 15. PW-9 S. I. Abhai Singh was Sta tion Officer of police station Pipraich. He had arrested the accused appellant on 6-5-79 and instructed him to keep his identity concealed. He proved that the accused ap pellant was kept Baparda inside the police lock up and was sent for remand etc. in Baparda position. 15. PW-9 S. I. Abhai Singh was Sta tion Officer of police station Pipraich. He had arrested the accused appellant on 6-5-79 and instructed him to keep his identity concealed. He proved that the accused ap pellant was kept Baparda inside the police lock up and was sent for remand etc. in Baparda position. He stated that on receipt of the result of the identification he had submitted charge-sheet against the accused appellant. 16. CW-1 Jag Deo Singh was the Magistrate who conducted the identifica tion proceedings and CW-1 S. I. Yogendra Nath Singh was the police officer who conducted the initial investigation of the case. 17. The learned trial Judge placing reliance upon the value of the identifica tion evidence convicted and sentenced the accused appellant as aforesaid. Hence this Appeal. 18. We have heard Sri S. L. Yadav, learned counsel for the accused appellant and Sri V. B. Singh learned A. G. A. for State; considered their contentions and have gone through the records of the case. 19. The factum of dacoity in question was not seriously contested by the accused appellant before the trial Court. It stands fully proved beyond any shadow of doubt by the direct evidence of Taj Mohammad (PW-1), Phagu (PW-2), Sukhari (PW-3) and Hafiz (PW-4 ). 20. The circumstances that soon after the commission of the dacoity Hafiz (PW-4) went to the police station Pipraich cov ering a distance of about four miles and lodged a written report Exh. Ka. 1 there stating therein the commission of dacoity at his house as also at the house of Murtuza and further about the loot of the wrist watch of Khali and a box from his house as also from the house of Murtuza, fully go to prove that a dacoity was in fact commit ted at his house on the intervening night of 30-4-79/1-5-79. 21. 21. The circumstance that Sukhari (PW-3) who was the son of first informant Hafiz (PW-4) and who was sleeping inside his house and had sutained a number of injuries on his person during the commis sion of the dacoily in question and further that on hearing the nosie, the villagers of the adjoining village who include Phaujdar had arrived at the spot and that Phaujdar also sustained injuries at the hands of the bandits, because of which Phaujdar had ultimately died on the next day in the morning, after being admitted in the Medical College. Gorakhpur leave no room for us to discard the veracity of the prosecution version on the point that a dacoity was in fact committed at the house of Hafiz (PW-4) and that Phaujdar had died in consquence of the injuries sus tained by him at the hands of the bandits during the commission of the said dacoity. 22. Now the question remains about the complicity of the accused appellant Hari Lal in the said dacoity. Nobody was named as bandit in the FIR. According to the statement of S. I. Abhai Singh (PW-9) accused appellant was arrested on the basis of some secret information conveyed to him by the police informer on 6-5-79 from village Balcwa on the canal road within the jurisdiction of his police station. The accused appellant was immediately made Baparda and proper link evidence that the accused appellant was kept Baparda right from the time of his arrest till the conclu sion of the identification proceedings has been adduced by the prosecution before the court below. The said evidence consist of statement of S. I. Abhai Singh who had arrested the accused appellant and made him Baparda and kept in the police lock- up in Baparda position. Further the evi dence of constable Shambhu Singh (PW-6) is clear on the point that the accused ap pellant was produced before the remand Magistrate Baparda and was lodged in the district Jail Baparda. Then again the evi dence of constable Galo Singh PW-12 the Court Moharhr of Addl. Further the evi dence of constable Shambhu Singh (PW-6) is clear on the point that the accused ap pellant was produced before the remand Magistrate Baparda and was lodged in the district Jail Baparda. Then again the evi dence of constable Galo Singh PW-12 the Court Moharhr of Addl. Chief Judicial Magistrate Court fully proves that even on the date of second remand on 22-5-79 when the accused appellant was produced before the Magistrate concerned, full pre caution for bringing the accused appellant before the Court and for taking him back in the judicial lock-up Baparda were taken and at no point of time the accused appel lant was shown to any of the witnesses. 23. It is important to note here that although the accused appelalnt in his ex amination under Section 313, Cr PC has stated that he was arrested by the police on 3-5-1979 and was shown by the police to the witnesses, yet no evidence in this be half worth the name has been brought on record. If it was a fact that the accused appellant was arrested on 3-5-79 and was kept in police custody without any judicial order, the accused could have moved at-least an application before the Magistrate concerned when he was sent to jail on re mand for being kept in judicial custody. No such statement was made by the ac cused appellant even before the Magistrate Sri Jag Deo Singh when he was put up for identification inside the district jail. 24. Secondly, the accused appellant has not suggested any enmity with him either of the police or of the witnesses who had laid hands upon him, during the course of identification proceedings. A perusal of the identification memo reveals that the accused appellant was not correctly identified by Hafiz (PW-4) who was the first information of the case and was the maker of the FIR Exh. Ka. 1. If it was a fact that the police officials had shown the accused appellant prior to the identifi cation lo facilitate identification of the accused appellant inside district jail, we arc of the view that alleast the first infor mant Hafiz (PW-4) would not have committed any mistake in identification of the accused appellant. 25. Out of the four witnesses of fact produced by the prosecution before the court below Taj Mohd. 25. Out of the four witnesses of fact produced by the prosecution before the court below Taj Mohd. (PW-1), Phagu (PW-2) and Sukhari (PW-3) had correctly laid hands upon the accused appellant and had correctly identified him before the identification Magistrate inside the Dis trict Jail on 26-5-79 as also before the trial Court. Out of these three witnesses, Suk hari (PW-3) was an injured eye-witness of the occurrence. He was one of the victims who stated to have been sleeping in the Verandah of his house at the time of oc currence and who got up on hearing the noise of gun shot. He was one of those witnesses who were intimidated and col lected by the bandits outside the house. He stated that after committing dacoity at his house the bandits had entered into the house of Murtuza and they committed loot there. In the meantime the villagers of nearby village Barua came. All those vil lagers were having torches and lathis. One of these villager had set fire in a thatch which provided sufficient light on spot, in the light of which he and other villagers could see the faces of the bandits. He specifically stated that he and the villagers of Barua chased the bandits upto the ma chine of Deep Cahudhary where electricty bulb was burning. There the bandits took an about turn and caused injuries to Phagu and Yamuna. He stated that one of the bandits opened fire by means of country made pistol and the other by means of a gun. The fire opened by means of gun hit Phaujdar. He staled that because of the fire opened by the bandits and the threat given by the bandits the villagers did not further chase the bandits. 26. The other two witnesses of fact viz. Taj Mohammad (PW-1) and Phagu (PW-2)_ who had correctly identified the accused appellant have fully corroborated the statement of Sukhari (PW-3) the in jured eye-witness of the case. 26. The other two witnesses of fact viz. Taj Mohammad (PW-1) and Phagu (PW-2)_ who had correctly identified the accused appellant have fully corroborated the statement of Sukhari (PW-3) the in jured eye-witness of the case. They had no enmity with the accused appellant and but for the participation of the accused appel lant in the dacoity in question in which one youngman of 35 years of age was gunned down and the other Sukhari (PW-3) sustained a number of injures would not have correctly laid up hands upon the ac cused appellant during the course of identification proceedings and then con nect him with the ghastly offence in their statement on oath before the Court below. 27. The evidence of the aforesaid four witnesses of fact viz. Taj Mohammad (PW-1), Phagu (PW-2) Sukhari (PW-3) and Hafiz, (PW-4) being quite clear and consistent on the point of light of torches, the straw of thatch as also electricity bulb, it could not have been a difficult task for the victims and other villagers to have seen and identified the accused appellant. 28. The evidence of Jag Deo Singh (CW-1), the Magistrate who conducted the identification proceedings is quite clear on the point that he had taken necessary pre caution during the course of identification proceedings and we find nothing in his statement to discard his testimony. 29. It would suffice to state that the arrest of the accused appellant just within a week of the occurrence and that the prompt identification proceedings which were conducted just within 26 days of the occurrence of the case during which period the facial expression of the bandits should have remained quite fresh in the mind of the witnesses who laid hands upon the accused appellants during the course of identification proceedings, fully proves the complicity of the accused appellant in the occurrence of this case. 30. It was vehemently argued by Sri S. L. Yadav, learned counsel for the ac cused appellant that there were certain contradictions in the statement of wit nesses which to our mind are too signifi cant to be taken into note of that the facial features of the bandits were not mentioned in the FIR or in the statement recorded by the Investigating Officer and, therefore, no credence should be attached to the identi fication evidence. We are unable to agree with the submissions put forward by Sri Yadav before us for the simple reason that when neither the police nor the victims had any enmity with the accused appellant it cannot be believed that the accused ap pellant was falsely booked in the occur rence of this case. The precautions which the police officials had taken for keeping the accused appellant Baparda. the link evidence which the prosecution had ad duced on this point before the court below and the promptness with which the identi fication proceedings were conducted, leave no room for us to doubt the credibility of the witness of fact viz. Taj Mohammad (PW-l), Phagu (PW-2), Sukhari (PW-3) and Hafiz (PW-4 ). 31. Thus in the result we find nothing wrong in the approach of the court below in convicting and sentencing the accused appellant. The appeal has got no force. It is hereby dismissed. The bail granted to the accused appellant by this Court on 17-3-80 is hereby cancalled. C. J. M. Gorakhpur is directed to get the accused appellant arrested and to commit him to prison to serve out his sentence. 32. Let a copy of this order alongwith the record of the case be sent to the court below for needful compliance and report within three months. Appeal dismissed.