Dharnidhar Jha & Pankaj Naqvi,JJ.:- The three connected appeals arise out of Judgment dated 05.04.1983, passed by learned Special Judge, Mainpuri in Special Trial No. 69 of 1982, by which the appellants, namely, Tulsi Ram, Sipahi Lal @ Sipahi Ram @ Chandrabhan and Prahlad were held guilty of committing offence under Section 396 IPC. Appellant Ram Singh was tried in Special Trial No. 114 of 1982 by the same learned Court for a charge under Section 412 IPC and was also held guilty of committing the said offence by the same Judgment. The four appellants were heard under 235 Cr P C on 06.04.1983 and appellants Tulsi Ram, Sipahi Lal @ Sipahi Ram @ Chandrabhan ( to be referred as Sipahi Lal) and Prahlad, were directed to suffer rigorous imprisonment for life for their individual convictions under Section 396 IPC. Appellant Ram Singh was sentenced to rigorous imprisonment for 10 years for his conviction under Section 412 IPC. 2. The three appeals have been heard together and they are being disposed of by the present common judgment. 3. A dacoity was committed in the house of Subedar Singh ( PW-1), Ram Bharosey ( PW-2), Sukhbasi ( CW-2) and Bansidhar ( not examined) in the night intervening 18/19.01.1982 at around 12 PM, when 12-13 dacoits armed variously knocked at the door of the informant and asked him to open the door. PW-1 was not inclined to open the door. The dacoits threatened to demolish the door, PW-1 being frightened on that, unbolted the door, as a result of which, the criminals entered inside his house and started beating him. His wife and his distantly related mother-in-law were sleeping on the verrandah of the house, while other male family members, like, Ram Bharosey ( PW-2) and Bansidhar ( not examined) were sleeping in their respective cattle sheds. On account of being frightened, the wife of the informant started raising hulla, as a result of which, the dacoits started firing shots in the blank. One of the dacoits went-up stairs on the roof top and others started plundering the house and removing the valuables, like, ornaments, clothes, utensils, etc. The dacoits plundered the house of CW-2 Sukhbasi and also took away his licensed gun. One of the dacoits went-up stairs on the roof top and others started plundering the house and removing the valuables, like, ornaments, clothes, utensils, etc. The dacoits plundered the house of CW-2 Sukhbasi and also took away his licensed gun. In retaliation to the firing resorted to by the criminals, some of the neighbours of the informant, like, Vijay Singh, Sipahi Lal Jata and others also fired shots, which was again retaliated by the criminals, as a result of which, two ladies, namely, Sushila Devi w/o Vijay Singh and her daughter Smt. Siya Devi, as also chaukidar Gyani received gun shots injuries. When Smt. Saraswati and the daughter of Banshidhar attempted to run away from the house, they were also fired at and were badly injured. Smt. Premwati w/o Balwant was fired at and killed at the roof top of her house. 4. On account of sound of gun shots, the informant, his family members and other victims of the offence and also the villagers who had been named in the FIR, also converged on the place of occurrence by flashing torches. Chaukidar Gyani set the hay-stack at fire, as a result of which, the dacoits retreated to the west of the village along with the booty plundered from different houses. The informant along with injured persons started for the police station but Saraswati died on way to the police station. 5. It was stated that the dacoits were young fellows and 2-3 out of them, had put on khakhi uniform and others had sported pant and T-shirt, jersey, etc. The informant also gave a list of the properties looted by the criminals. 6. On the basis of written report ( Ex.ka-1), PW-9 Head Moharrir S K Singh drew up the FIR ( Ex.ka-40) of the case and made necessary entries in the general diary after preparing the copy of the FIR. The investigation was taken up by PW-14 SI Jagmohan Singh, who after arriving at the place of occurrence, held inquest upon the dead body and inspected the place of occurrence and prepared the sketch map. He recorded the statements of witnesses and after closing the investigation, submitted the charge-sheet against the accused persons. 7. The investigation was taken up by PW-14 SI Jagmohan Singh, who after arriving at the place of occurrence, held inquest upon the dead body and inspected the place of occurrence and prepared the sketch map. He recorded the statements of witnesses and after closing the investigation, submitted the charge-sheet against the accused persons. 7. During the course of investigation, SI D S Rana had arrested appellants Sipahi Lal from village Niharo on 17.03.1982, whereas appellant Tulsi Lal and Ram Singh were arrested by PW-6 Inspector R B Singh on 02.02.1982 and on 16.04.1982 respectively from their respective villages. Appellant Ram Singh was also allegedly found in possession of the gun, which was looted from the house of Sukhbasi ( CW-2) and the same was also seized by preparing the seizure memo. Appellant Prahlad was arrested by PW-14 SI Jagmohan Singh. After their arrest, the above named accused persons were put on TIP ( Test Identification Parade) on two different dates. Appellants Sipahi Lal, Tulsi Ram and Prahlad were put on TIP, which was conducted by PW-4 Sri G C Saxena on 29.03.1982 and each of them was identified by PW-1, PW-2 and PW-3 as also by Court Witness No. 2. Likewise, appellants Prahlad and Sipahi Lal were identified in the same TIP by the above named four witnesses. Appellant Ram Singh was put on TIP on 26.05.1982 and he was identified by PWs 1 & 3, but what we find is that he was not charge-sheeted under Section 396 IPC and had only been tried for an offence under Section 412 IPC. The TIP charts dated 29.03.1982 and 26.05.1982 have been marked as Exts. Ka-22 & Ka-23 respectively, and the Magistrate who oversaw the holding of the TIP, has been examined as PW-4. 8. The appellants do not challenge dacoity having been committed and two ladies, namely, Premwati w/o Balwant and Smt. Saraswati Devi w/o Bansidhar being murdered. Likewise, they also do not dispute that five other persons, like, Chaukidar Gyani ( CW-1), Smt. Sushila Devi, Smt. Siya Devi, Shyam Lal and Sipahi Ram ( all not examined) had also been injured after having received gun shots injuries from the shots fired by dacoits. However, they appear challenging their participation and the appropriateness of acting upon the evidence of four witnesses, who claimed to have identified each of the three appellants, namely, Sipahi Lal, Tulsi Ram and Prahlad. 9. However, they appear challenging their participation and the appropriateness of acting upon the evidence of four witnesses, who claimed to have identified each of the three appellants, namely, Sipahi Lal, Tulsi Ram and Prahlad. 9. The prosecution examined as many as 14 witnesses and the Court also summoned Chaukidar Gyani Singh and Sukhbasi as its own witnesses and examined them as CWs 1 & 2 respectively. The evidence of identification was accepted by the learned trial Judge in spite of the evidence of the solitary defence witness DW-1 V K Lal who stated that there was no recovery of any gun from Ram Singh. 10. Sri N I Jafri and Sri Ajatshatru Pandey, learned amicus curiaes appearing on behalf of the appellants took us through the evidence on record and submitted that PW-4 Sri G C Saxena, who was the Magistrate, conducted the TIP with participation of witnesses, like, PWs 1, 2 & 3 as also Court Witness No. 2. It was further submitted that appellant Sipahi Lal, Tulsi Ram and Prahlad were bearing identification of four witnesses but, evidence of witnesses, namely, PWs 1, 2 & 3, indicates as if the accused persons were known to them from before, and further that on account of difference due to factionalism, they could have been falsely implicated. In that reference, our attention was drawn to different paragraphs of evidence of PWs 1, 2 & 3. It was further submitted by the learned amicus curiae that the three appellants Sipahi Lal, Tulsi Ram and Prahlad were arrested on three different dates, i.e., on 17.03.1982, 02.02.1982 and on 16.03.1982 respectively. They were put on TIP on one date, i.e., on 29.03.1982, i.e., after many days of their arrest, and the evidence of at least one witness, i.e., PW-2 in paragraphs 15 & 16 indicated a probability, as the witness had the knowledge of the accused, who had been arrested by the police, and they had probably also known as to who they are and that further probabilised that the accused persons might have been shown to the witnesses before they were put on TIP for being identified therein. Submission also was that accepting that for the sake of argument that the TIP was held the witnesses were pointing out as to in what connection they had identified each of the appellants. Submission also was that accepting that for the sake of argument that the TIP was held the witnesses were pointing out as to in what connection they had identified each of the appellants. As regards appellant Ram Singh, the contention was that the evidence of his arrest and the recovery of the gun was not acceptable, as PW-6 Inspector R B Singh, who claimed to have arrested Ram Singh on 16.04.1982 had stated that he received the information about appellant Ram Singh being in possession of the looted gun from PW-14 SI Jagmohan Singh, and accordingly, arrested Ram Singh and recovered the gun. However, PW-14 SI Jagmohan Singh had not stated anything regarding the retention of the looted gun by appellant Ram Singh and relating that fact to PW-6 and whatever evidence of recovery and preparation of the seizure memo was available on record that was completely in conflagration of the provisions of the Cr.P.C. as regards the preparation of the seizure memo. 11. Sri Saghir Ahmad, learned AGA was submitting that the evidence of the witnesses was not such as could raise a probability that they could be knowing the appellants from before the occurrence and as such their evidence of identifying an accused in TIP was not acceptable. It was further submitted that the identification evidence collected by PW-4 after holding TIP was according to law and the evidence of four witnesses was sufficiently indicative of the fact that the four appellants had participated in the commission of the offence. The recovery of the gun from Ram Singh was established from the evidence of PW-6 and there was no reason to discard his evidence. 12. It need not be pointed out that the prosecution case, as contained in the written report Ex. Ka-1, did not name the appellants as persons, who had been identified during the commission of dacoity, nor there was any specific story as to whose shot had hit the two deceased. We generally find in a case of dacoity with murder or even in case of kidnapping or abduction that names of the real culprits or perpetrators of the crime are generally not disclosed on account of the victim or the informant not being acquainted with them, or not exactly knowing the details about the name, parentage, etc. of the accused persons. of the accused persons. In such cases, investigation generally starts on suspicion and the claim of the witnesses that they had the occasion of seeing the witnesses and they could identify them, remains the basis of such investigation. It also does not require to be noted that the claim of the witnesses, that he could identify the criminals, who had committed the offence of dacoity or robbery, is not the evidence as regards the identification of an accused, nor on that basis the identification of an accused in the Court could be the real evidence. It is also to be pointed out that the evidence of TIP of a witness, that a particular accused had been identified by him in such parade, had been seen committing the dacoity or doing any particular act, is also not the substantive evidence unless the witness makes such a statement in Court and identifies the accused in Court room. Thus, what is pure and admissible evidence, is the evidence of identification of a criminal in Court room with reference to the earlier identification of a man as a participant in commission of an offence of dacoity, who had been identified by him during that course and who had also been identified in TIP. If the evidence of the witness or the prosecution may indicate that there could be any probability of the witnesses knowing the accused persons, or, in other words, if the evidence indicates that the witnesses or the accused were acquainted with each other from before the occurrence, then in that case the value of TIP is not only lessened, rather it becomes sufficient to reject the prosecution as regards the participation of the accused. This is how the proposition of law stands laid down through various decisions of different Courts and one such decision which comes into our minds is in the case of Hari Nath Vs. State of U.P. AIR 1988 SC 345 . In that case the accused had taken a plea that he was a student studying in a college located in the neighbouring village and the witnesses were acquainted with him from prior to the date of occurrence. State of U.P. AIR 1988 SC 345 . In that case the accused had taken a plea that he was a student studying in a college located in the neighbouring village and the witnesses were acquainted with him from prior to the date of occurrence. Relevant evidences, which were considered by the Supreme Court, was the admission of the witness that the college was located in the village adjoining to the village of occurrence and the appellant was studying in that particular college from prior to the occurrence. The defence had also produced the records of the college in support of its plea and ultimately the Supreme Court held that there was "statable probability arising in spite of feigned ignorance of any prior familiarity with the identities of the accused persons" and on that basis the evidence of identification was discarded by the Supreme Court. 13. Here, in the present case we have the evidence of four witnesses and one witness, i.e., PW-1, the informant of the case is important in the above context. The very evidence of PW-1 was that a lady was related to him as his mother-in-law on account of being father's sister of his wife, who was also residing in his house and was sleeping with his wife in the verrandah of the house. PW-1 in paragraph 4 had stated that the lady was resident of village Usmanpur and she had landed properties in that village and that had come under his management. PW-1 had further stated that some of the immovable properties belonging to that particular lady was situate in village Lalpur and Meerapur. It was suggested to PW-1 as to whether there was any field of appellant Sipahi Lal adjoining any of the plots of the said lady which was being tilled by him, to which he stated that he does not exactly remember. But, he was further quizzed on the fact and was asked to point out the names of persons whose plots around his plot. What we find is that PW-1 was pointing out the name of persons whose fields were located on the north, south and west of the plot, but was again not coming out clean as to whose field was located on the east of that particular plot. What we find is that PW-1 was pointing out the name of persons whose fields were located on the north, south and west of the plot, but was again not coming out clean as to whose field was located on the east of that particular plot. It was not that the witness did not know, but he was simply stating to the Court that he remembered as to whose field, which was situated contiguous east to his plot in question, but the Counsel was more clever than the witness. He was putting a very direct question to him by pointing out to Sipahi Lal as to whether the witness has seen the appellant Sipahi Lal ever tilling the plot, which was situated contiguous east to the plot in question. In reply to that particular question, the witness appears breaking down and coming to some part of the truth. He stated that he might have seen him tilling. This is one part of the evidence which indicates some probability that Sipahi Lal was not an unknown fellow as regards the appellant being identified by PW-1 on account of being known to him from before. 14. The other part of the evidence of PW-1 was that village Meerapur was situated at a distance of about 1 kos ( 1 kos ordinarily is equal to 2 miles) and he further stated that Sipahi Lal was bald and that he had neither mentioned in the FIR nor had stated to the police during investigation that any of the criminals was bald. As regards appellant Tulsi Ram, we have the evidence of PW-2, one of the co-villagers and neighbour of PW-1, and one of the persons whose house was also plundered during commission of dacoity. The first line appears in paragraph 14 of his evidence, when he stated in cross-examination that he had not seen Sipahi Lal in dacoity with other dacoits. Thus, the evidence of PW-2 regarding having identified appellant Sipahi Lal as one of the dacoits, pales into irrelevance. The first line appears in paragraph 14 of his evidence, when he stated in cross-examination that he had not seen Sipahi Lal in dacoity with other dacoits. Thus, the evidence of PW-2 regarding having identified appellant Sipahi Lal as one of the dacoits, pales into irrelevance. So far as the evidence regarding the identification of co-appellant Tulsi Ram is concerned, the evidence has come from PW-2 in paragraph 16 itself that there was Shanker Cold Storage, which was located in his village and accused Tulsi Ram used to come with the tractor of the cold storage to till the fields of his co-villagers and further he also used to bring the truck from the cold storage for taking back the potatoes, which were the produce of the fields. PW-2 further stated that Tulsi Ram used to remain at his village for quite some times as he used to till the fields of other persons and used also to take away the potatoes of the farmers. Thus, Tulsi Ram could not be an ordinarily unknown fellow, who could be appearing in the village once, per chance or accidentally so that he may not be identified by the villagers. The evidence of PW-2 in paragraph 16 gives convincing reasons for us to hold that he was quite known to the villagers on account of his vocation of driving the tractor, as also bringing the truck. In the rural area, persons who used to come for carrying out such operations by way of helping out the farmers, are more popular than some of the villagers and probably his name is a household name and is to be recognized as a person who could be known to any one. Thus, the evidence of the two witnesses, i.e., PWs 1 & 2 as regards the identification of Sipahi Lal and Tulsi Ram, raises the probability that they could have been very well known to the villagers including the witnesses. The evidence of their identification by the witnesses appears unacceptable. 15. As regards the participation of accused Prahlad in commission of dacoity, the evidence of PW-1 in paragraph 21, raises a probability, as if he was well known to PW-1. If PW-1 could be knowing Prahlad, then there was no such reason to believe that the villagers could not be knowing him also. 15. As regards the participation of accused Prahlad in commission of dacoity, the evidence of PW-1 in paragraph 21, raises a probability, as if he was well known to PW-1. If PW-1 could be knowing Prahlad, then there was no such reason to believe that the villagers could not be knowing him also. Moreover, PW-1, who was the informant of the case, was pointing out that he was not seen and identified as one of the dacoits. As regards the evidence of PW-3, less said is the better. One line of his evidence in paragraph 9 indicates that there could not be any occasion for the witnesses to have seen and picked up the features of the dacoits while they were committing the dacoity in the house of the villages. PW-3 has stated in paragraph 9 that he had seen the dacoits but could not see their faces as they had put mundase, i.e., clothe around their faces for concealing the identification. PW-3 has further stated in the cross-examination that the face was wrapped right from the head upto the chin and it appears that in cross-examination there was some attempt to clarify the evidence but the basic evidence of PW-3 in paragraph 9 puts it to the degree of unsafety that we act upon the evidence of PW-3 to hold that he had really identified the accused persons. If his evidence indicates that there was no occasion for him to pick up the identifying features of the accused persons, then he could not be said to have recalled those features while participating in the TIP so as to picking up the right persons. This psychological aspect of identification gets reflected in the evidence of PW-2 Ram Bharosey in paragraph 21, who appears telling us about the identification of the accused persons. PW-2 stated in paragraph 21 of the paper book that because he knew Tulsi Ram, so he put his hand over him. This could be the case, which could be only applicable to all the three appellants. 16. If this was the evidence of identification, then we have serious reservations in acting upon them and we have further reservations which appear from the evidence of PW-2 in paragraphs 15 & 16. This could be the case, which could be only applicable to all the three appellants. 16. If this was the evidence of identification, then we have serious reservations in acting upon them and we have further reservations which appear from the evidence of PW-2 in paragraphs 15 & 16. A combined reading of paragraphs 15 & 16 indicates, as if after the arrest of the accused persons and putting them into police lock-up at the police station they were shown to all the witnesses. PW-2 has stated that this information had reached them but he had not known anything about the whereabouts and other details of the accused persons. Why should a witness who had participated in TIP, know as to who has been arrested and has been put into lock-up by the police, unless he has been conveyed information by some persons, who required it to be conveyed for any other purposes, may be for readying the witnesses to participate in the TIP so that they had identified the accused persons correctly? The evidence of identification of three appellants, namely, Sipahi Lal, Tulsi Ram and Prahlad is of such degree, as we have already indicated, as not to be acted upon and in that view, we reject the same. 17. So far as appellant Ram Singh is concerned, he has not been convicted under Section 396 IPC and in spite of initially having been identified by two witnesses, i.e., PWs 1 & 3, he was not charged with that offence. He was charged with offence under Section 412 IPC and was ultimately convicted of that particular offence. The evidence in proof of the charge under Section 412 IPC against Ram Singh related to having been found in possession of gun, which was looted from the house of CW-2 Sukhbasi. PW-6 Inspector R B Singh has stated in his evidence that he learnt from PW-14 SI Jagmohan Singh, who came to the police station, that appellant Ram Singh was at his house and the gun in question was in his possession. PW-6, thereafter, proceeded with a posse of police force to the village of Ram Singh and after search of Ram Singh, put a seize round the house of appellant Ram Singh, when two persons ejected therefrom and started running away but Ram Singh was chased and arrested. The gun was recovered from him. PW-6, thereafter, proceeded with a posse of police force to the village of Ram Singh and after search of Ram Singh, put a seize round the house of appellant Ram Singh, when two persons ejected therefrom and started running away but Ram Singh was chased and arrested. The gun was recovered from him. PW-14 SI Jagmohan Singh does not say that he ever met PW-6 Inspector R B Singh and had conveyed the fact that Ram Singh was at his house and was having in his possession the gun, which was the subject matter of theft of the present case. Thus, the claim of PW-6 that he had been informed about Ram Singh being in possession of gun, has not been supported by PW-14. The other part of evidence of PW-6 is that he had admitted that the village of appellant Ram Singh was inhabited by 300-400 persons as appears from paragraph 7 of his evidence, but he did not associate any person with the proceedings of search and seizure of the gun. We may just refer to Section 100 of the Cr P C, which lays down the procedure for search of a place as also the manner thereof of a person when it comes to search of any person, who is suspected of concealing about his person any article for which search should be made. The search has to be made by the Officer by calling upon two or more independent and respectable inhabitants of the locality, in which the search has to be made, but that association of persons with the search is only when they are willing to be a witness to the search. PW-6 was deeply cross-examined by defence on the requirement of adhering to Section 100 Cr P C and he admitted that he did not ask anyone of the locality to associate himself with the search of appellant Ram Singh, which was made by him. Not only that if nothing was to be recovered on search so made by the Officer, then Section 100 ( 6) Cr P C requires that copy of the list prepared under the Section, had not only to be signed by the witnesses but also to be delivered to the person or the occupant of the place. Not only that if nothing was to be recovered on search so made by the Officer, then Section 100 ( 6) Cr P C requires that copy of the list prepared under the Section, had not only to be signed by the witnesses but also to be delivered to the person or the occupant of the place. PW-6 initially stated that he had made over the copy of the search and seizure memo to accused Ram Singh, as appears from paragraphs 8 of his evidence, but in the next line he stated that the search memo was not bearing any signature of the accused in token of having received a copy of the search memo. Thus, what we find is that the evidence of PW-6 that he had searched and recovered a gun from the possession of Ram Singh, appears such, which could not be acted upon for holding that appellant Ram Singh was in possession of the gun. Moreover, if PW-14 SI Jagmohan Singh, who was investigating the case, had the information about appellant Ram Singh, being in possession of the booty, then he was himself competent to conduct the raid of the house and search and recover the gun. Besides, if Ram Singh had ejected to evade being arrested and searched, why should he carry the gun on his person? Does not these facts defy logic and raise serious doubt and clear inference of fabricating evidence to support a charge? 18. Section 412 of the IPC requires the prosecution to establish that the retention of the theft property was with dishonest intention and the person who was found in possession of such a stolen property, must also have the knowledge or reason to believe that the possession of the property had been transferred to him by commission of dacoity. In the present case, we find a complete lack of evidence and none of the ingredients of Section 412 of the IPC was established. 19. In view of the discussion of evidence, which we have made presently and the probabilities arising threfrom, we find that the conviction of the appellants, namely, Tulsi Ram, Sipahi Lal and Prahlad under Section 396 IPC was not sustainable in law. As regards the conviction of appellant Ram Singh under Section 412 IPC, the evidence was completely lacking and not fit to act upon. 20. As regards the conviction of appellant Ram Singh under Section 412 IPC, the evidence was completely lacking and not fit to act upon. 20. In the result, we allow the three appeals by setting aside the judgment of conviction and sentence passed against each of the four appellants who are acquitted by us. Appellant Tulsi Ram, Sipahi Lal @ Sipahi Ram @ Chandabhan, Prahlad and Ram Singh are on bail. They shall stand discharged from the liabilities of their bail bonds. 21. We record the sincere efforts and assistance, rendered by Sri N I Jafri and Sri Ajatshatru Pandey, as learned amicus curiaes to us and in token of our appreciation, we direct the Registrar General of the Court to ensure the payment of Rs.6,000/- ( six thousand) only to each of them from the appropriate head as fees.