JUDGMENT

Smith, J - These are appeals by three persons, Tula, a Kurmi, Chhotey Lal, a Brahman, and Antu,a Dhobi, who have been convicted by the learned Additional Sessions Judge of Kheri under Section 395, I.P.C., and sentenced to seven years' rigorous imprisonment each. The cases of Tula and Chhotey Lal have been argued before me by Mr. H.G. Walford, nobody has appeared on behalf of Antu. The convictions relate to a dacoity which is said to have taken place on the night between 5th and 6th April last at the house of one Lalaram, a Brahman residing at a place called Karnapur in the Bheera police circle of the Kheri district. There is no reason to doubt that a dacoity did, in fact, take place on the night in question at the house of Lalaram, but the question remains whether it was adequately proved that the three-appellants took part in it. There were seven accused tried in the case of whom only the three appellants were convicted. The evidence against the appellants Tula and Chhotey Lal consisted entirely of identification evidence. I shall take their cases separately.

2. One Chandan, who was P.W. 19 in the case, said that on the day preceding the dacoity he saw a number of men sitting on a road inside the jungle near a. village called Chhairasi. He afterwards identified Tula as being one of those persons. The evidence of this man Chandan however was disbelieved by the learned Additional Sessions Judge, and we are left only with the fact that Lalaram himself, Misri Lal, his nephew, a man named Chhotey Lal, and a boy named Dorey picked out this appellant at the jail and in both the Courts as seen by them amongst the dacoits. The learned Additional Sessions Judge himself however for reasons given by him, did not feel inclined strongly to rely on the identifications made by Lalaram and Misri Lal. In fact he acquitted an accused in the case named Balak Ram Against whom the only evidence was that he had been identified by these two men Lalaram and Misri Lal. He also rejected as worthless the evidence of Chhotey Lal. What turned the scale against the appellant Tula in the mind of the learned lower Court was his identification by the boy Dorey. Where an analysis of the various identification proceedings however in which this boy took part shows that in all, at different times, he identified only three suspects as against what are commonly described as four "wrong men," that is to say, persons who were not suspected. It cannot be said in these circumstances that the identifications made by this boy Dorey are entitled to much consideration in themselves, and they cannot be held sufficient to supplement the rest of the evidence against this appellant, which evidence, as I have shown, was either discarded by the learned lower Court or regarded as being at least untrustworthy. The result is that the appeal of Tula is allowed, and his conviction and sentence are set aside. He must be released forthwith. (The rest of the judgment is not material for the report).