JUDGMENT :- This is an appeal by two persons, Poshaki who has been convicted under S.395, IPC and sentenced to six years R.I. and Azimullah who has been convicted under S.412, IPC and sentenced to three years R.I.

2. The facts which give rise to this appeal, briefly stated, are as follows: On the night between 8th and 9th August 1949 near about midnight a dacoity was committed in the house of one Rewaram by 14 or 15 persons. Rewarams house is situate in village Gahlol within the police station, Sahaswan in the district of Budaun. A first information report was made on the morning of the 9th at 11-30 by Rewaram himself. The police station where the report was made was four miles from village Gahlol. In this first information report Rewaram gave no names because he was unable to identify anyone, taking part in this dacoity, as having been known to him from before. Rewaram also gave the details of the property which had been taken away from his house. From the list it appears that the bulk of the looted property consisted of clothes and some ornaments. A sum of Rs.600/-, in ten and five rupee notes, was also alleged to have been looted.

3. As a consequence of the information received by the police of the dacoity at Rewarams house investigation followed and ultimately six accused persons stood their trial before the learned Sessions Judge of Budaun. The learned Judge after a consideration of the evidence, adduced in the case, acquitted four out of the six accused before him, and convicted the two appellants in the manner indicated earlier. The two appellants before me were arrested on 13-8-1949 from their residential village of Barni which is not far from village Gahlol-the scene of the dacoity.

4. The prosecution put forward two types of evidence against the two appellants-one consisted of the usual identification by witnesses and the other was the proof of a statement by the accused to the investigating officer which led to the discovery of a well which, in term, yielded a box from which certain articles were recovered-articles which were identified at the trial to belong to the complainants. In the latter group also fall two other recoveries which were made by the police as a consequence of what the two appellants are alleged to have told the police. In the case of Poshaki appellant, it related to the discovery of a Kuthia (some kind of earthen receptacle) from which two female dhotis were recovered and in the case of Azimullah, which led to the discovery of a golden nose-ring.

5. I shall first dispose of the evidence of identification, Poshaki was identified by only two witnesses, Gangaram and Hetram. Gangaram made four mistakes and identified three correctly while Hetram made four mistakes and identified four correctly. The value of this identification, therefore, is, in my judgment, very poor and it would be very unsafe, to rely on this identification for the purposes of upholding the conviction of the appellants before me. The identification parade at which the aforementioned witnesses identified the accused was conducted on 26th October. There was, therefore, a long gap between the date of the dacoity and the identification parade. Further, Gangaram in the first round made one mistake and in the third round he made three mistakes. That indicates that by the time he was having his third round he was relying completely on chance and not on memory.

6. The position in regard to Hetram is no better. He picked out Poshaki in the second round and in that very round he made one mistake. Then in the third round he made three mistakes and in the fourth round he identified nobody correctly but made one mistake.

7. I shall now take up the other evidence against the appellants. According to the prosecution both Poshaki and Azimullah made a statement to Head Constable, Mujibullah P.W.26, in the presence of the Station Officer. Mujibullah gives a synopsis of the statement in his deposition. What he says is this:

"On the directions of S.O. I

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