JUDGMENT

Ramabhadran, J. - These three appeals arise out of the Sessions Trial No. 10 of 1963, wherein four accused persons, including the three appellants were tried of an offence under Section 395 IPC on the footing that they had participated in an armed dacoity that was committed at the houses of various persons in Village Bhian, P.S. Jalesar, District Etah, on the night intervening 6th and 7th June, 1961. The three appellants were found guilty and were accordingly convicted and sentenced to undergo ten years' rigorous imprisonment each. The fourth accused Gyan Singh was, however, acquitted. Toofan Shah and Subedar have filed their appeals through counsel, while Rachpal Singh's appeal is from jail. The three appeals have been heard together as they arise out of the same trial.

2. There can be no doubt that a large number of dacoits, said to be 20 or 25, did raid the Village in question and committed dacoity at the houses of Sheitan Shah (P.W.8) and others, during the course of which injuries were caused to Sri Pal Shah, (P.W.5). Torches were flashed not only by the dacoits but also by the Villagers. Two bundles of dried Arhar plants and thatch grass were set on fire by some of the Villagers with the result that there was a bright conflagration in whose light the features of the dacoits were seen. The dacoity lasted for about one and a half hours, after which the dacoits fled taking the booty with them. The F.I.R, in respect of this dacoity was lodged at P.S. Jakesar on 7.6.1961 at 7.15 a.m. by (P.W.5), Sri Pal Shah. It was written report. Police investigation followed. The appellants were arrested during the course of investigation and put up for identification. It is on the result of That identification that the appellants have been convicted.

3. It would be convenient to discuss the case of each appellant separately.

4. Toofan Shah. - This appellant who is a resident of Village Ramraipur, was arrested on 23-6-1961 and sent to jail on the following day. He was put up for identification on 17-7-1961 at the District Jail, Etah in the presence of Sri S.N. Sagar (P.W.12) a first Class Magistrate. Out of the 20 witnesses, who were called to the parade, four correctly picked out Toofan Shah. They are Asik Shah (P.W.1), Shahzad Khan (P.W.2), Chhattar Pal (P.W.3) and Pooran Shah (P.W.6), none of whom made the mistake. To the identifying Magistrate, the objection taken by this appellant was that the witnesses who had been called to the parade knew him since previously and further that he had been shown to them at the Thana.

5. At the trial, Toofan Shah denied having participated in the dacoity and alleged false implication due to enmity and village factions accepting the evidence of identification and rejecting the plea of this appellant the trial Judge held him guilty and accordingly convicted him.

6. In appeal, his learned counsel urged vehemently that the conviction of Toofan Shah cannot be sustained. Interalia, he pointed out that Village Ramraipur where Toofan Shah lives, is situated at a distance of only about 2 miles and three furlongs from Village Bhiau wheree the dacoity took place, and where the four indentifying witnesses reside. An arguments was accordingly advanced that under the circumstances there was a strong likelihood that Toofan Shah was already known to those witnesses. Reliance was placed in this connection on Ashrafi v. State, 1960 ALJ 595 wherein a Division Bench on this Court observed -

"If the accused happens to belong to his own Village, identification is useless and his name must be expected to be mention- ed in the first information report or shortly afterwards. If he resides in a place situate within a radius of two miles of the habitation of the witness, it is safe to assume that he was already known."

The learned AGA, on the other hand, pointed out, that the presumption would arise only where the residence of the accused is situated within a radius of two miles of habitation of the identifying witnesse