JUDGMENT

C.K. Thakker, J.—These appeals have been preferred by the State of Rajasthan against the judgment and order dated November 3, 1989 passed by the High Court of Judicature for Rajasthan, Bench at Jaipur in S.B. Criminal Appeal Nos. 302 of 1989 and 322 of 1989 acquitting all the accused of the charges levelled against them.

2. Brief facts of the case are that during the night intervening 25th and 26th November, 1987, a report was lodged by one Ramji Lal (PW 1) at Police Station, Sever that a dacoity had been committed at Village Samarpur. It was alleged that at about 12.00 night, while he was sleeping in his room with his father Dwarika Prasad and younger brother Satish, 10-15 dacoits armed with lathis and guns came to his room and hit them with lathis and looted movable properties, ornaments of gold and silver from the houses of Ramji Lal, Chandan, Gopal and Ramsukh. In the incident, they shot at Dwarka Prasad on chest who died. Ramji Lal, PW 1 also stated before the Police that he could recognize the accused in the electric light. On the report a case was registered and the police visited the place of incident. Police recovered 3 empties of .12 bore, 3 empties of .315 bore and a glass piece of .315 bore from the spot. On November 27, 1987, Ramsukh, Ramji Lal and Chandan submitted a list of articles looted from their houses. The accused persons were arrested by the Police. The Additional Munsif and Judicial Magistrate, Bharatpur put them to identification by the witnesses. The witnesses identified them. The seized and recovered articles were also put to identification and they were also identified by the persons to whom they belonged.

3. The Trial Court framed charges against the accused persons for offences punishable under Sections 395 read with 397 and 396 of the Indian Penal Code (‘IPC’ for short) and also under Section 3 read with Section 25 of the Arms Act. The accused persons denied the charges framed against them. They also denied recovery of the articles and contended that they were falsely implicated in the case. The prosecution examined 23 witnesses in support of its case. No evidence was adduced in their defence by the accused persons. The Special Judge, Dacoity Affected Area, Bharatpur convicted accused Netrapal, Dhanpal, Raju and Shyam Singh under Section 395 IPC and ordered them to undergo rigorous imprisonment for seven years. Netrapal, Lakhmi and Vijendra were convicted for offences punishable under Section 3 read with Section 25(1)(a) of the Arms Act and were ordered to undergo rigorous imprisonment for three years.

4. On appeal, the High Court acquitted all the accused of the charges giving them benefit of doubt in the matter of identification of the accused persons; of recovery of articles at their instance and of identity of articles and ornaments.

5. With regard to the identification of the accused persons at the time of commission of offence, the High Court found that the dacoity was committed during the night intervening 25th and 26th November, 1987. Admittedly, it was a dark night. The evidence was not consistent as to electricity at the house of PW1 Ramji Lal. So far as Ramsukh is concerned, temporary electric bulb was there in the chowk. But the evidence also showed that the bulb was not working. There was also inconsistency as to whether there was electricity in the village. The Court also considered the statement of PW 23 Ramswaroop Yadav, SHO. He did not mention as to at which place the electric bulb at the house of Ramsukh was on, nor was the existence of the bulb was shown in the site-plan-Ex. P2. He orally mentioned that there was electric light in the village. The Court noted that there was no reason for the SHO not to mention the presence of electric bulb in the site-plan if it was there as it was a very important aspect and it was the case of prosecution that the witnesses had identified the dacoits in the light of electric bulb. The Court also observed that it was not possible tha