DESAI, C. J.

( 1 ) THE following question has been referred to a Full Bench by a Bench which is hearing an appeal by Jwala and others against their conviction under section 396, Indian Penal Code, by the additional Sessions Judge of Kheri:

"where the prosecution in support of its case adduces evidence of identification of an accused by witnesses in the trial of the case in Sessions Court, and does not produce those witnesses in the Committing Magistrates Court, should the evidence of such witnesses be disbelieved merely on the ground that they were not produced by the prosecution in the Committing Magistrates court for the said purpose?"

The necessity for referring the question arose because of a conflict of views among Judges of this Court. It was pressed before the learned Judges, who referred the question, that it was a question not of law but of fact, but they felt compelled to refer it for an authoritative decision because in some decisions it was placed on the same footing as a question of law and subordinate courts were also treating it as such or were taken to task for not treating it as such.

( 2 ) THE question referred to us is essentially a question of fact and not of law