Sharma, J. - (1.) THIS is an appeal by Hindu Singh, Udey Singh and Bheron Singh who have been convicted by the Additional Sessions Judge, Jhalawar under sec. 395 read with sec. 397 of the Indian Penal Code and have been sentenced to seven years' rigorous imprisonment and a fine of Rs. 2000/-each, and in default have been given one year's rigorous imprisonment.
(2.) THE case for the prosecution is that on the 28th January, 1950 a dacoity took place at the house of Onkar Lal in village Fatehpur in Jhalawar District at about 8-30 P. M. THE dacoits numbered about thirteen and the three appellants were the dacoits. Some of the dacoits were armed with guns and others with lathies. Onkar Lal was more harshly treated and his beared was burnt. Amar Singh, his nephew was fired at by Udey Singh and received injury in his leg. Considerable amount of property valued at about Rs. 3,000/- was taken away. A report was lodged at the Police Station Pirawa at about midnight by Mathura Lal constable Choki Kothi. Hindu Singh was arrested on the 9th February, 1950 and was put up for identification on the 13th February, 1950 before Mr. S. P. Mani Magistrate First Class Pirawa. Udey Singh was arrested on the 4th February, 1950 and was got identified by the Sub-Inspector on the date before himself. Udey Singh and Hindu Singh alone were challaned with other accused who were discharged and with whom we are not concerned. Subsequently Bheru Singh was also arrested on the 10th June, 1950 and was put up for identification on the 15th June, 1950 and thereafter he was also challaned. The accused was committed by Mr. Abdul Wahid Khan Sub-Divisional Magistrate, Jhalawar to the court of Additional Sessions Judge, at Jhalawar. The accused were to stand their trial under sec. 395 read with sec. 397. All the accused denied the charge. Hindu Singh and Udey Singh pleaded that they were related to Onkar Lal and his nephews Amar Singh and Kanji who were known to them from before. Udey Singh also pleaded that he was on inimical terms with Onkar Lal. Bheru Singh pleaded that he had travelled with the prosecution witnesses who had identified him two or three days before he was identified. All the accused pleaded alibi. The learned Additional Sessions Judge did not accept the prosecution evidence about the piece of cloth which was alleged to have been taken away at the time of dacoity. He however, based conviction only on the identification of each of the accused by some witness. All the three accused have preferred this appeal against their conviction and sentence. It was argued by Mr. Bajpai appearing on behalf of the accused that the only evidence which has been relied upon for the conviction of the appellants is identification evidence. Hindu Singh was identified only by two witnesses namely Onkar Lal and Kanji who are closely related to him. Both of these witnesses have not been straight-forward in their evidence and have avoided answering certain questions which must have been in their knowledge. Hindu Singh was related to Onkar Lal's family and was known to the identifying witnesses from before. The occurence took place at about 8-30 in the night and it was very difficult for these two witnesses to clearly recognise the accused at the time of the offence, during the heat and excit-ment of the event. As regards Bheru Singh it was argued that the same arguments apply as in the case of Hindu Singh. Bheru Singh stated before the Magistrate that all the identifying witnesses travelled along with him in a bus only three or four days before the identification parade. His identification was also very suspicious. As regards Udey Singh it was argued that it has been established that he was on inimical terms with Onkar Lal and that he was very well known to the family of Onkar Lal as he was related in more than one way with the family. It was admitted by Onkar Lal that he knew this accused from before. The fact that his name was not mentioned in the police report throws a good deal of suspicion against him. A number of rulings were also cited in order to show that identification by a few witnesses alone is not ordinarily sufficient for the conviction of the accused in a case of dacoity at night. The learned Government Advocate has conceded that so far as the case of Udey Singh is concerned it cannot be said that offence has been proved against him beyond a reasonable shadow of doubt. The fact that he was closely related to the family of Onkar Lal and that there were only two witnesses i. e. , Amar Singh and Mst. Bishan Bai against him whose statements are not very straightforward so far as this accused is concerned and the fact of litigation between Onkar Lal and this accused makes the case very doubtful against him. It is, therefore, not necessary to examine the prosecution evidence against him as m our opinion he is, entitled to the benefit of doubt. Coming to the case of Hindu Singh the only evidence against him is that of Onkar Lal and Kanji. Kanji is a nephew of Onkar Lal. It was complained by Hindu Singh before the Magistrate that the two witnesses who identified him knew him from before and that he was related to Onkar Lal's family. There is no doubt that there is some relation between Gopalji the brother of Onkar Lal and this Hindu Singh accused. His father's cousin is married to Gopalji. Onkar Lal and Kanji have no doubt stated that they did not know the accused from before but looking to other statements which do not appear to be straight forward, we have a good deal of doubt about his statement that they did not know the accused from before. Moreover even if the statements of these witnesses were taken to be honest statements there was scope for their mistaking the identity. The dacoity took place at night at about 8-30 P. M. and it has not been proved that there was sufficient light in which the accused could be identified. These accused are alleged to have been moving to and fro and not standing at any fixed place near any of the two identifying witnesses. It is very doubtful that these witnesses might not make any mistake about the identity of these accused. It was held in the case of Emperor vs. Irjan and others (A. I. R. 1927 Calcutta Page 820) that identification made at night during the occurrence such as dacoity, when blows are struck and the people are terrorized, are generally of very little value. In the case of Ramzan and others vs. Emperor (A. I. R. 1929 Sind Page. 149) it was held that identification tests are a form of evidence which is always to be taken with a considerable amount of caution and they are, as a rule, not quite sufficient to form the basis of a conviction, though they may perhaps add some weight to other evidence against an accused person. In another well known case known as Adolf Beck case which is mentioned in the last mentioned case of Sind Judicial Commissioner's Court, eight or ten witnesses recognized Beck as the man who had cheated them; yet it turned out that it was a case of mistaken identity. That case goes to show that cases of mistaken identity are quite possible. In a case like the present when there are only two witnesses who identified these accused before the Magistrate and about whom it cannot be said with confidence that they did not know these accused from before, if would be very risky to base conviction only on this evidence of identification. We are therefore, not prepared to maintain the conviction in the case of this accused as well. Lastly takingthe case of Bheru Singh the value of identification in his case is even much less than that in the case of other accused. He was arrested about six months' after the occurrence and was put up at the identification parade a few days later. Only four witnesses came forward to identify him. One was Onkar Lal, the other was Kanji, the third was Amar Singh and the fourth was Madho Singh. So far as Madho Singh is concerned his evidence appears to be very improbable. He has clearly stated that it was on account of torch light that he could identify this accused otherwise he would not have been able to identify him. It is not very easy to believe that a dacoit would flash torch light upon his face at the time of dacoity so that he might be identified by the persons who were his victims. In order to make his statement some what credible the witness says that Bheru Singh was moving with the torch to and fro and in that event the light flashed upon his face. This does not carry any connection to us. The other witness Kanji who identified the accused, has not mentioned anything about torch light. It is difficult to believe that at night time he would be able to identify clearly the accused through a click. Amar Singh also does not say that the accused remained close to him for any length of time. He has stated that he saw only that they entered the door of Onkar Lal. During such a short time at night, it cannot be said with confidence that Amar Singh would be able to identify the accused clearly. No doubt Onkar Lal says that Bheru Singh remained near him for some time. Onkar Lal was however, ill and was confined to bed. According to him he had never seen Bheru Singh before the date of dacoity. Even if he would be taken to be an honest witness it is difficult to base the conviction only on his identification, under the circumstances of this case. Bheru Singh also complained at the time of identification proceedings that he had travelled in a bus in the company of identifying witnesses after he was arrested by the police. This has of course been denied by the witnesses. The accusation may be correct or not but identification was held a considerable time after the dacoity and it is very difficult to place any confidence in the identification by three of the witnesses who had only momentary opportunity to look at the dacoits and by the fourth witness who was not in a proper state of health at the time of dacoity. Ordinarily people are so much stricken with terror at the time of a dacoity in which a considerable amount of property is looted and guns fired and lathies used that it would be very difficult to base conviction only on the statements of a very small number of witnesses whose statements are not free from doubt. To our mind guilt has not been brought home to any of the three accused beyond a reasonable shadow of doubt and they are therefore, entitled to acquittal. The appeal is allowed, the conviction and sentence are set aside and the three appellants are acquitted. They will be set at liberty at once if not required in connection with some other case. Fine if paid shall be refunded. . ;