JUDGMENT

M.H. Beg, J. - The appellant Chakki has been convicted under Section 395, I. P. C. and sentenced to seven years' rigorous imprisonment and the appellant Jag Narain has been convicted under Section 412, I, P. C. and sentenced to seven years' rigorous imprisonment by an Additional Sessions Judge of Jhansi.

2. Both the appellants were arrested and prosecuted after a dacoity had been committed at the house of Rameshwar (P.W. 2) in village Pursua at about 8 P.M. on the night between 7th and 8th June, 1961 by seven or eight persons. In course of the dacoity, Durga Prasad (P.W. 5) the son of Rameshwar (P.W. 2) was beaten and also sustained gunshot injuries inflicted by the dacoits. A first information report was duly lodged at police station Gursarai on 9th June, 1961 at 12-30 A.M. in which a description of the dacoits was at tempted, and it was mentioned that some of them had moustaches. It was also mentioned in the first in-formation report that the dacoits were seen well in the light of lantern and the torches and could be identified on seeing them again.

3. The appellant Chakki Lal was arrested on 13-8-1961 and made bapurda at once and sent to jail bapurda immediately. He was put up for identification at a test parade on 22-8-1961 and was duly identified by four out of seven identifying witnesses. Out of these, Rameshwar (P. W. 2), Mulua (P. W. 3) and Man Khan (P. W. 4) identified the appellant in both the courts below. The appellant complained that he had been identified as a result of his moustaches but the cross-examination of Sri S. K. Modwell (P. W. 7), who conducted the identification parade, reveals that he had taken precautions to mix persons of similar appearance at the appellant's identification parade. The appellant also alleged that he had been shown to the prosecution witnesses, but nothing could be brought out from the cross-examination of the witnesses to indicate that this could be true. Indeed, if this appellant had been shown to the witnesses he would have been identified by more. There is evidence on record to prove that there was sufficient light and opportunity to identify the dacoits at the house of Rameshwar during the commission of the docoity. No adequate reason could be brought out to reject the evidence of identification of this appellant. I, therefore, uphold the conviction and the sentence of this appellant.

4. Jag Narain, who was also suspected, was arrested on 23rd July, 1961 at his house. At the time of his arrest, the investigating officer questioned him and it is alleged that when he was asked where "the loot of Pursua dacoity was, he led the officer to a room inside the house and dug out silver ornaments, a pair of churras (Ex. 1) and a pair of Gajarias (Ex. 2) from underneath the grain in one of the bins in the house. The evidence of recovery at the instance of the appellant Jag Narain has been challenged on the ground that it is faked. It was alleged that Bare Lal (P. W. 8), a close neighbour of Jag Narain, a witness of recovery, was hostile to Jag Narain. It was pointed out that Bare Lal (P. W. 8) had admitted that one Kishori Lal was beaten twelve years ago by Jag Narain, but no reason could be brought out for the hostility of Bare Lal (P. W. 8) himself who was alleged to be a co-sharer and relation of Kishori Lal. Bare Lal denied that he was giving false evidence due to the alleged hostility. In addition, there is the evidence of the police officer, Rais Ahmed Khan (P. W. 16), in respect of the recovery said to have been made from the house of Jag Narain in the manner indicated above. I have not been shown any sufficient reason for discarding this evidence of recovery against the appellant.

5. It was then argued that the recovery was not made from Jag Narain's possession even though it was from his house. It is pointed out that Bare Lal (P. W. 8) had admitted that Mata. Din, the father of Jag Narain, and Jag Narain's two elder brother, and a younger brother, were all living in the s