- (1.)THIS is an appeal under Section 374 (2), Cr. P. C. against the judgment and order dated 18. 4. 1983 passed byvllthaddl. District and Sessions Judge, Agra in Sessions Trial No. 275 of 1981, whereby the trial Court convicted the appellant Rajbir under Section 396,i. P. C. and sentenced him to life imprisonment.
(2.)THE incident relates to a dacoity which was committed in the night of 18/19. 7. 1980 at about 12 O'clock in village Berichahar police station Khairagarh district Agra in the house of P. W. 1 Rajendra Kumar. In this dacoity about 8 or 9 dacoits participated and during the course of dacoity they opened fire injuring the first informant and also causing death of Om Prakash. Report of this incident was lodged by Rajjo I Rajendra Kumar on 19. 7. 1980 at 4 A. M. On the basis of which a case under Section 396, I. P. C. was registered at police station Khairagarh district Agra. No one of the dacoits was named in the F. I. R.
The police, however, took up the investigation and during the course of investigation, witnesses named Ram Bharosey and Nek Ram amongst the dacoits. These two persons are of the same village where dacoity was committed. The names of two other persons Ramvir and Sarnam also came to light but these two persons died during pendency of the trial.

The police claimed that during the course of investigation Ram Bharosey was apprehended on 3. 8. 1980 along with some stolen property and the complicity of appellant Rajbir, who is resident of Mathura, also came to light on the basis of the information collected by the police and the police then apprehended Rajbir, Babu, Shanker, Pepey alias Pritam. The witnesses claimed that they had seen the incident of dacoity in the light of torch and lantern etc. The dacoity was committed for about half an hour.

(3.)THOSE accused, who were not named by the witnesses even during their interrogation under Section 161, Cr. P. C. , were subjected to test identification parade on 5. 9. 1980. Appellant Rajbir was one of them. He was arrested by the police on 3. 8. 1980 itself on the disclosure made by co-accused Ram Bharosey. Eight witnesses participated in the test identification parade and out of them appellant Rajbir was rightly identified by P. W. 1 Rajendra Kumar, P. W. 2 Onkar Singh, P. W. 4 Lala Ram and Laxmi Narain. On the basis of test identification performance by the witnesses, the appellant along with Babu, Shanker, Ram Bharosey and Nek Ram were charge sheeted. They pleaded not guilty to the charges framed under Sections 396 and 412, I. P. C. etc.
In the trial, seven witnesses were examined by the prosecution in order to bring home the charge. They were P. W. 1 Rajendra Kumar (informant), P. W. 2 Onkar Singh, P. W. 3 Padam Singh, P. W. 4 Lala Ram, P. W. 5 Shanti Devi, P. W. 6 Jaddo and P. W. 7 S. I. Cyan Singh. Except P. W. 7 Cyan Singh all these wit nesses are witness of dacoity or the witness of test identification parade.