Hon’ble S.C. Agarwal, J.—This is an appeal against judgment and order dated 2nd February, 1982 passed by the 7th Addl. Sessions Judge, Mainpuri in S.T. No. 262 of 1977 whereby the appellants Bhagwan Das and Janjali were convicted under Section 395 IPC and sentenced to undergo R.I. for five years.

2. During appeal, appellant No. 1 Bhagwan Das had died as per the report dated 7th August, 2009 of C.J.M. Mainpuri. Thus the appeal in respect of appellant Bhagwan Das abates and we are concerned only with appellant No. 2 Janjali.

3. The incident took place in the night of 11/12.7.1974 at 11 p.m. The FIR was lodged on 12.7.1974 at 6.40 a.m. by Bhojraj Singh (P.W. 1).

4. The prosecution case, in brief is that on 11.7.74 at about 11 p.m. in Village- Murli, hamlet of Village- Semar, P.S. Kuraoli, District-Mainpuri, Bhojraj Singh was taking his meals whereas his sister was sitting by his side, a lantern was lit. About 8-10 dacoits armed with country-made pistol and lathi committed dacoity in the houses of Bhojraj Singh, Ram Bharosey, Mathuri and Nawab. For about half an hour, the dacoits looted the property. Sri Bhawani set Mustard Turi on fire causing sufficient light. On alarm being raised, the villagers assembled and the dacoits made good their escape with looted property. Bhojraj Singh loged the FIR next morning at 6.40 a.m. at the police station. During investigation, appellant Janjali and some others were arrested and made ba-parda. Janjali was arrested on 12.10.1974. He was put up for identification on 17.12.1974 and was correctly identified by Bhojraj Singh (P.W. 1), Nawab Singh (P.W. 2), Bhawani (P.W. 3) and Ram Bharosey (P.W. 4). After investigation, charge-sheet was submitted.

5. Charge under Section 395 IPC was framed against the appellant Janjali. He denied the charge and claimed to be tried.

6. The prosecution examined six witnesses in this case. Bhojraj Singh (P.W. 1), Nawab Singh (P.W. 3), Bhawani (P.W. 2) and Ram Bharosey (P.W. 4) are the witnesses of fact and identification. Ramesh Chandra Saxena (P.W. 5) is a formal witness. He has proved the signatures of Sri S.K. Maheshwari, Executive Magistrate on the identification memos Ext. Ka-4 to Ka-7. Shishu Pal Singh (P.W. 6) is the Investigating Officer.

7. In statement under Section 313 Cr.P.C., appellant Janjali denied the prosecution allegation and claimed that he was shown to the witnesses. However, the defence did not adduce any oral evidence.

8. Relying on the prosecution version, the learned Sessions Judge convicted the appellants Bhagwan Das and Janjaji under Section 395 Cr.P.C. and sentenced them as aforesaid.

9. I have heard Sri J.S. Kasyap, learned counsel for the appellants, learned AGA for the State and perused the trial Court’s record.

10. It is submitted by learned counsel for the appellant Janjali that there is no evidence on record to show that immediately after arrest, the appellant was made ba-parda and kept ba-parda through out till identification parade was held. It is further submitted the appellant was not made ba-parda and was shown to the witnesses at the police station.

11. Learned AGA, however, supported the impugned judgment.

12. Out of four witnesses, two had identified and appellant Janjali in Court. Bhawani (P.W. 2) did not identify Janjali in Court. He only identified co-accused Bhagwan Das. Similarly, Nawab (.P.W. 3) identified Bhagwan Das only but did not identify the Janjali, though he stated that he had identified someone looking like Janjali in Jail.

13. Bhawani (P.W. 2), however admitted in cross-examination that after 4-5 days from dacoity, it had come to this knowledge that dacoits have been caught by the police. The police brought three dacoits to the village.

14. However, Bhojraj Singh (P.W. 1) and Ram Bharosey (P.W. 4) identified appellant Janjali in Court and stated that Janjali was involved in dacoity. They did not know him before dacoity. They had seen him during dacoity and thereafter at the time of Test Identification Pa