( 1 ) THIS is a Government appeal against the acquittal of respondents Wahid Bux, Dori, Chandu, badam, Devi and Buddha.

( 2 ) THE respondents along with, several others were prosecuted for having committed dacoity armed with guns at the house of one Thakur Prasad in the night between 4th and 5th March 1918 in village Lahdaura, district Budaun. Fifteen persons wore prosecuted by the police. One of them was discharged by the Committing Magistrate. Out of fourteen who were committed to the Court of Session, only two, namely Mian Jan and Parshadi, who were caught on the spot, were convicted. The rest were acquitted. Out of the twelve acquitted persons, the Government has filed an appeal against the six respondents only.

( 3 ) THAT there was a dacoity at the house of Thakur Prasad in the night in question is not disputed. In this dacoity 20 or 25 dacoits took part. Some of them were armed with guns, some with spears and others with lathis. Property worth about Rs. 30,000 was looted. The villagers came up on the scone and gave a light. In the light some of the villagers and some of the dacoits were injured. Two of the dacoits, Mian Jan and Parshadi, were caught by the villagers and handed over to the police. A pistol and cartridges were recovered from Mian Jan.

( 4 ) THE question with which we are concerned is whether the six respondents or any of them participated in the dacoity. The evidence against some of the respondents consists both of recovery of certain articles from their possession and of identification and against others it consists of identification alone. There were several identification parades in jail. One was held on 7-4-1948, another on 27th May, the third on 29th May, the fourth on 12th July, the fifth on 29th July, the sixth on 18th August and the seventh on 21-9-1948. Some of the witnesses appeared in more than one of the parades. The articles which were recovered from the possession of some of the respondents were put up for identification. The articles had chits attached to them. The Judicial Magistrate, who conducted the identification, was unable to say whether similar chits wore placed on the other articles which were mixed with the articles to be identified. If no such chits were placed on the other articles, it was very easy to pick up the articles with chits. This would be no identification at all. Further the articles recovered were of a very ordinary type. For instance, from Waliid Bux a Dua, a Jugnu and a patta were recovered. From Dori completely torn coat and a dhoti were recovered. From Chandu a lota, a tumbler, a longe were recovered. Nothing was recovered from the other respondents. These articles were of ordinary kind and could be found with anybody in the village and the witnesses did not point out any special features or marks of identification on them. They were not able to say to whom the articles belonged. In this view of the matter the learned sessions Judge did not draw any inference from the fact that these articles were recovered from the possession of the aforesaid respondents. We arc of opinion that the learned Sessions Judge was right in rejecting the testimony relating to the recovery of the articles.

( 5 ) WE are, therefore, left with the identification alone. The learned Sessions Judge rejected the testimony of identification also on one general ground which related to all the respondents. This was that in the first information report it had been stated that the village people set fire to a chappar of Thakur Prasads house and that when its light spread the dacoits began to run away. The learned Sessions Judge concluded that since the dacoits ran away as soon as the chappar was set fire to, there was not enough time for the witnesses to identify them. This reasoning has not appealed to us. It appears that either the village people or the dacoits themselves set fire to the chappar of the house of Thakur Prasad probably after they had looted the house and were going out