V.N. Varma, J.

1. This is an appeal from the judgment and order of Sri. R.B. Srivastava, Additional Sessions Judge, Allahabad by which he convicted Appellants Dadua, Bachaiya, Ram Nath, Dukhi and Ram Autar under Section 395 IPC and Appellants Kripal and Gajwa under Section 395/397 IPC and sentenced the former to seven years RI each and the latter to eight years RI each.

2. Before I dwell on the facts of the case I may mention at this very place that three of the Appellants, namely, Dadua, Bachaiya and Gajwa have died. Their appeal, therefore, abates.

3. One Surajpal is a resident of village Bidaun, P.S. Karari, district Allahabad. Baijnath (PW 4) and Raja Ram (PW 9) are his sons. On the night of 17/18-10-1971 Surajpal, Baijnath and Raja Ram had been sleeping in their Chaupal while their womenfolk had been sleeping inside the house. A lantern had been burning at the main door as usual. At about midnight, Surajpal woke up to make water. To his surprise, he saw some dacoits armed with lathis, Ballams and Kantas standing near the door of his house. Soon thereafter he saw some dacoits on the roof of his house. Sensing danger Surajpal raised an alarm. His sons Baijnath and Raja Ram immediately woke up and they rushed out of the house. They went to the village and woke up the villagers. By this time the dacoits had entered into the house and had opened the main door. Those dacoits who were outside also formed their entry into the house. All the dacoits then started looting the house. While the looting was still going on, the villagers carrying torches and armed with lathis collected near the house of Surajpal. Raja Ram (PW 9) stepped forward and set fire to a heap of Piyara kept towards north-east of his fathers house. It started burning and made the entire locality aglow. The villagers took courage and pressed on the dacoits and there was a regular encounter between them. Some of the dacoits had Dhatas on their faces and those Dhatas fell down during the course of scuffle. They were known people and the villagers had no difficulty in recognizing them. They were Dadua, Bachaiya, Gajwa (all dead), Ram Nath and Kripal. Some of the dacoits were unknown and the villagers recognised them in the light of torches and in the light of burning Piyara. In the encounter the villagers killed two dacoits. They were Bulla and Gaya Prasad of village Bais-kanti. Finding their two companions killed, the dacoits got panicky and made good their escape. After the dacoits had run away, Surajpal got a report written out by Basant Bahadur Singh (PW 1). Basant Bahadur Singh took that report to Thana and lodged it there at 7- 45 A.M.S.I. Shyam Kishore Tripathi was present at the Thana when the report was made. He immediately took charge of the investigation and recorded the statement of Basant Bahadur Singh. Thereafter, he went to the spot. At the spot he recorded the statements of the material witnesses and saw the torches of those villagers who had flashed them on the dacoits at the time of the dacoity. He found them to be in working order. Thereafter, he inspected the locality and drew the site plan Ek. Ka-28. He found some ash of burnt Piyara near the house of Surajpal and took a part of it in his possession. Having done that he busied himself in searching out the miscreants.

4. On 10-11-1971 S.I. Suresh Bahadur Singh (PW 13) arrested Appellants Dukhi and Ram Autar. He made them Baparda and took them to P.S. Karari. On that very day both these persons were sent to Jail in Baparda condition. Later on, the persons named in the report were also arrested.

5. Appellants Dukhi and Ram Autar were put up for identification in Naini Central Jail on 7-1-1972. Their test identification parades were conducted by Sri. Shitla Prasad, Magistrate First Class.

6. After receiving the result of identification and after completing the investigation, the Investigating Officer submitted a charge sheet against the Appellants.

7. The Appellants pleaded not guilty and denied their participation in or for that matter any connection with the dacoity in question. Dadua, Bachaiya, Ram Nath, Kripal and Gajwa attributed their false implication due to enmity with the witnesses of the case. Dukhi and Ram Autar also attributed their false implication due to enmity with the police. They alleged that the witnesses knew them and that is why they succeeded in identifying them.

8. The learned Additional Sessions Judge found the prosecution case proved against the Appellants and he, therefore, convicted and sentenced them as indicated above. Aggrieved, they have come up in appeal to this Court.

9. The story of the crime as narrated by the witnesses stands unchallenged and conclusively proves the commission of an offence punishable under Section 395 IPC and indeed the learned Counsel for the Appellants has made no attempt to question the factum of the occurrence. Accordingly, all that is necessary for me in this case is to examine the evidence and endeavour to judge whether or not the participation of present Appellants in this crime has been established beyond reasonable doubt.

10. The case against Appellants Ram Nath and Kripal rests on the evidence of nomination while the case against Dukhi and Ram Autar rests on the evidence of identification. In the first information report made by Suraj pal, five persons had been named, they were Dadua, Bachaiya, Ram Nath (Appellants), Kripal (Appellant) and Gajwa. According to the first information report they were amongst the dacoits. All the witnesses have stated that they had no difficulty in recognizing them as they knew them well from before. During the course of trial, the prosecution probably realised that known people would seldom go to commit dacoity with their faces open and, therefore, the witnesses were made to state that Dadua, Bachaiya, Ram Nath, Kripal and Gajwa had tied Dhatas on their faces and as their Dhatas fell down during the course of encounter with the villagers they had no difficulty in recognizing them. The Court below has placed reliance on the evidence of these witnesses but I think it was not at all justified in having done so. There are clear indications in their evidence that they are not very truthful people and have taken recourse to untruths and half-truths at several places in their evidence. They want me to believe that all those who had been named in the report had tied Dhatas on their faces but during the course of fight with the villagers their Dhatas fell down and they (witnesses), therefore, recognized them. This part of their evidence is so dressed up and artificial that 1 for one cannot persuade myself to act upon it. I can understand one Dhata falling, two Dhatas falling but to say that the Dhatas of all the known people fell down at one time is something which passes my comprehension. The known people had tied Dhatas on their faces with a purpose, that purpose was to conceal their identity. If they had taken full precaution to conceal their identity by tying Dhatas on their faces they would certainly have tied them in such a way that they would not fall down easily. It is, therefore, all false on the part of the witnesses to say that during the course of scuffle with the villagers the Dhatas of all the known persons had fallen down. Even the learned Counsel for the State found it difficult to say anything in support of this position. Therefore, as it is, I am certain that the Dhatas of the dacoits had never fallen down and as such there was no occasion for anybody to have recognised those who had been named in the report. The witnesses availed of this opportunity to implicate their enemies and that is why Dadua, Bachaiya, Ram Nath, Kripal and Gajwa were named in the report. In my opinion, the case against Appellants Ram Nath and Kripal is definitely false and they, therefore, deserve to be acquitted.

11. Now, I come to the case against Dukhi and Ram Autar against whom there is evidence of identification. Dukhi was correctly identified by Baijnath, Jhallar, Basant Bahadur Singh, Ram Surat and Raghu while Ram Autar was correctly identified by Baijnath, Jhallar and Basant Bahadur Singh. Seemingly, the evidence of identification against both these persons is very good but a little scrutiny will show that it is not worth acting upon. After seeing the identifaction memo and after going through the evidence of the identifying Magistrate, I think the witnesses identified both these persons not because that they had seen them at the time of dacoity but because of some external aid which was given to them. Dukhi and Ram Autar had been arrested by S.I. Shyam Kishore Tripathi. At the time when Dukhi and Ram Autar were arrested the former had been putting on a green baniyan and the latter a sky-blue-shirt. It was in these very clothes that both these persons had been put up for identification in Jail as would appear from the identification memo itself. The undertrials who had been mixed with them at the time of identification parade were not made to put on such clothes. This is clear from the statement of Jhallar (PW 7). In the committing Court he had stated in clear words that none of the undertrials mixed had been made to put on clothes similar to the clothes worn by Dukhi and Ram Avtar. In the identification memo also it is not mentioned that the undertrials had been putting on the same kind of clothes as the two suspects. The clothes which the undertrials and the suspects had been putting on were clearly visible to the witnesses because the parade had been covered with blankets upto the waist only. As the undertrials had been putting on clothes quite different from what the suspects had been putting on it was very easy for the witnesses to have identified them at the time of test identification. Consequently, much value cannot be attached to the evidence of identification in this case. The evidence of identification is a weak type of evidence and when it appears that the identification was not done properly then that evidence becomes all the more weak. In my opinion, the case against Appellants Dukhi and Ram Avtar is not free from doubt and they, therefore, also deserve to be acquitted.

12. In the result, I allow this appeal and set aside the conviction and sentence passed against the Appellants. They are on bail, their bail bonds are discharged and they need not surrender to them.