The court held that the witnesses did not have an opportunity to recognize the appellants, as they were running away at a distance when they were seen. The court also found that there was a possibility of false implication due to enmity between the complainant and the appellants.

G. D. Srivastava, J.

1. THIS is an appeal by three persons, namely Kali Singh, Birbal Singh and Paltoo Singh who have been convicted under Sections 457 and 380 IPC by the I Additional Sessions Judge, Basti. Each appellant has been awarded a sentence of rigorous imprisonment for four years under the first count and rigorous imprisonment for three years under the second count The two sentences have been ordered to run concurrently.

2. THE prosecution story was that in the night between 14th and 15th April, 1966 Sukhdeo Singh was sleeping outside his house while his son Ram Baran Singh and others were sleeping inside the house. At about 230 a. m. Ram Baran Singh woke up on hearing some sound inside the house. He flashed his torch and saw four thieves inside the room and he also saw that a hole had been bored in the southern wall. He came out of the house raising an alarm which attracted the attention of Sukhdeo Singh and others. THEreafter Sukhdeo Singh, Ram Baran Singh and others went to the south of the house and in torch light they saw and recognised these three appellants standing near the hole and one person was seen coming out of the hole. Before these persons could come nearer, the miscreants escaped. Sukhdeo Singh got a written report scribed by his son and it was lodged at the Thana at 430 a. m. THE investigation was done by Sub-Inspector Babban Singh who interrogated the witnesses, examined the torches, prepared a site plan and ultimately submitted a charge sheet on 21-10-1966.

The material witnesses of the prosecution are Sukhdeo Singh (PW 3), Ram Baran Singh (PW 4), Bhagirathi (PW 5) and Ram Lakhan Singh (PW 6). Sukhdeo Singh and his son Ram Baran Singh claimed to have recognised these appellants in torch light while the other two witnesses did not corroborate them and were, therefore, treated hostile. The rest of the oral evidence is of a formal nature.

3. THE appellants pleaded that they have been falsely implicated in the case due to enmity. THE Learned Sessions Judge believed the statements of Sukhdeo Singh and Ram Baran Singh and, therefore, convicted and sentenced the appellants as mentioned above.

4. THERE seems to be no controversy regarding the factum of theft. From the side of the prosecution, it was alleged that these appellants had a motive to commit this crime and the learned trial Court believed this part of the prosecution case. Accepting this finding regarding motive as correct, the relevant question is whether these two witnesses really got an opportunity of recognising the three appellants. In their examination-in-chief, both these witnesses deposed that when they went to the south of their house, they saw these three appellants standing near the hole. This is obviously a false story. If it is said that Ram Baran Singh came out of the house raising an alarm and then his father also raised an alarm which attracted the attention of some other village people and this party went towards the south, it is impossible to believe that these three appellants would remain standing' near the hole for no rhyme or reason. Obviously after the first alarm, the miscreants would make an attempt to escape as soon as possible. In the cross examination, however, both these witnesses changed the story and they admitted that when they went towards the south, they saw the miscreants running away at a distance of ten or twenty paces. A perusal of the site plan will make it clear that Ram Baran Singh, his father and others came from the northern direction while the miscreants were escaping towards the east. Even if it be assumed that they had really seen the miscreants, they could have seen only one side of their faces. I am not going to believe that from a distance of fifteen or twenty paces, it could be possible to recognise anybody in torch light when the miscreants were running away and particularly when these witnesses could have got only a side view of the faces. In fact, PW 4 clearly stated that at that time, his