The importance of reliable evidence in identification parades and the need to prove the arrest of the accused.

( 1 ) THIS appeal has been preferred against the judgment and order of VIth Additional Sessions Judge, Fatehpur convicting and sentencing appellant to undergo 7 years rigorous imprisonment under S. 395, I. P. C. and imprisonment for life under S. 396, I. P. C.

( 2 ) THE case of the prosecution was that at about 1. 30 a. m. in the night between 3/4-9-1977 six to seven dacoits entered into the house of Raisa Khatoon and Azizun. They committed dacoity in the houses and looted properties. It was alleged that there was a Dibbi burning in front of the house of Azizun and a lantern was burning in front of the house of Raisa Khatoon situated in village Amaun, P. S. Khaga, District Fatehpur. During the dacoity the dacoits fired towards witnesses. Mohd. Yusuf received serious injuries and later on died. The other persons also received gun shot wounds. It was alleged that during the dacoity a heap of paddy straw (payal) was put to fire. This created ample light enabling the witnesses to recognise the dacoits. The dacoits were unknown persons and the witnesses had seen them during the course of committing dacoity.

( 3 ) AFTER the occurrence Buddhu along with Raisa Khatoon and Shafi Mohammad went to P. S. Khaga and lodged the first information report at 4 a. m. After lodging of report the investigation was taken up by Bhushan Singh, Station Officer, P. W. 8. He had made the usual investigation prepared the inquest report of the dead body, collected the empty cartridges, one lathi, sample ash, blood stained and plain earth from the spot. The appellant was arrested in the night between 8 and 9/09/1977 and brought to the police station at 3. 30 a. m. in Beparda condition and kept in the lock up. Thereafter he was sent to the District Jail in a veiled condition. His identification was conducted in the District Jail on 4-11-1977 by Executive Magistrate, K. B. Srivastava, P. W. 4. Out of 8 witnesses sent for identification only 5 had identified the appellant. Thereafter a chargesheet was submitted.

( 4 ) THE accused had pleaded not guilty to the charges. It was urged that he was falsely implicated in this case on account of enmity with the police.

( 5 ) THE prosecution had examined 10 witnesses. Out of them P. W. 1 Buddhu, P. W. 2 Peer Mohammad, P. W. 3 Ramashankar and P. W. 5 Abdul Hasan were witnesses of fact. Out of them P. W. 2 had turned hostile. The others were formal witnesses. The defence had examined two witnesses i. e. Mohan Lal D. W. 1 and Nand Kishore D. W. 2. Mohan Lal D. W. 1 had stated that while Panchayat was being held in village Qasba Sohan, the appellant was called and taken to the police station by two constables. D. W. 2 Nand Kishore was the Lekhpal of the area in which the village, in which the dacoity was committed, was situated. He stated that in all the fields of Abdul Hasan late paddy crops was sown. This crop is harvested in the end of October and beginning of November.

( 6 ) AFTER assessing the evidence of the two parties, the learned Sessions Judge held that the appellant was guilty of the offences punishable under Ss. 395 and 396 of Indian Penal Code. Hence this appeal has been preferred.

( 7 ) A basic error has been committed by the trial Judge in convicting the appellant under Ss. 395 and 396 of Indian Penal Code. Offence under S. 396 of Indian Penal Code is only an aggravated form of the offence of dacoity. In an offence under S. 395 of I. P. C. the prosecution has to establish (1) that five or more persons were jointly concerned in the commission of robbery, (2) that one or more of them committed or attempted to commit robbery, and (3) that others were present and aiding such commission or attempt. To bring an offence under S. 396 of I. P. C. prosecution has to establish that murder was committed during dacoity. Hence when prosecution alleges that murder was committed during the dacoity the offence traverses from S. 395 of I. P. C. to 396 of I. P. C. Any person committing the offence of dacoity wi