ORDER :-The applicant Munshi was tried along with five other persons, viz. Atma Singh, Sher Khan, Sem Singh, Retain and Zulfi, by a Magistrate 1st Class Meerut. Munshi and Sher Khan were each convicted under Section 380, I.P.C. and sentenced to fifteen months' rigorous imprisonment, Atma Singh was convicted under Section 411, I.P.C., and sentenced to nine months rigorous imprisonment, while the remaining three accused were acquitted. The convicted persons preferred an appeal. The learned Additional Sessions Judge Meerut allowed the appeal of Atma Singh and set aside his conviction, but dismissed the appeals of Munshi and Sher Khan and maintained their convictions and sentences Munshi has come up in revision to this Court.

2. The case of the prosecution was that on the night between 25th and 26th August 1963 a Bhainsa belonging to Sheo Ram and two bullocks belonging to Ram Swarup were stolen from the respective Ghers of the said persons in village Chhabli. The loss of these cattle was discovered soon afterwards, in the night and some men of the village, including the owners of the cattle started immediately on a search. When they reached near the road which is at a distance of about mile from village Chhabli they heard the sound of a truck thereupon they rushed up to the road. There they saw that the two bullocks of Ram Swarup had been loaded in the truck and the above named six accused persons were trying to put the Bhainsa of Sheo Ram also into it. Four of the accused persons were standing on the ground and were actually engaged in pushing up the Bhainsa and Munshi applicant was one of them. On seeing the village people, the four accused who were standing on the ground, including Munshi, run away, but Atma Singh the driver and Sem Singh the conductor of the truck were captured. It was alleged that the village people had torches with them and in the light of the torches they saw and marked the features of the culprits who managed to escape. An information about the occurrence was sent to police station Baraut, situate at a distance about three miles from the place, and a report as registered there at 6-35 P.M. Bhikam Singh Sub-Inspector reached the spot and started investigation. He took into his custody Atma Singh and Sem Singh who had been captured by the village people. On the same day at about 8-15 P.M. he arrested Munshi applicant, Sher Khan, Hetam and Zulfi, who are all Banjaras, from their Deras in Shamli. After identification proceedings the six accused were sent up for trial.

3. The case against Munshi applicant rested only on his identification by prosecution witnesses Ram Swamp and Rameshwar Dayal, who claimed to have seen them when the stolen cattle were being loaded in the truck. At the identification parade Rameshwar Dayal made two correct identification and committed no mistake, where as Ram Swarup correctly identified two persons and made on mistake. The result, therefore, was that there was only one good identification against the applicant, The learned Additional Sessions Judge has observed that there are certain circumstances which lend assurance to the identification even though it is by one good witness only. The obvious inference is that, but for what he regarded as assuring circumstances, he would not have considered the identification evidence as a sufficient and secure basis for a finding of guilt against the applicant. Let me, therefore, examine those circumstances.

4. The first circumstance rioted by the [earned Additional Sessions Judge is that the applicant was arrested at Shamli in the night following the night of theft. How this circumstance can in any manner support the identification evidence or be suggestive of the presence of the applicant at the place where the stolen cattle were being loaded in the truck is, however, incomprehensible. The four accused persons who were arrested by the Sub-Inspector at Shamli are admittedly Banjaras, a class of people living a sort of nomadic life, and there was

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