JUDGMENT P.T. Raman Nayar, J. 1. These appeals are by the six accused persons in S. C. 99 of 1959 on the file of the Court of Sessions, Kottayam, Criminal Appeal No. 55 is by the 5th accused, No. 56 by the 6th accused, and No. 91 by accused 1 to 4. All six have been convicted under sections 450 and 395, IPC, accused 1, 4 and 5 of the aggravated form of the latter offence for which section 398 prescribes a minimum sentence of seven years' imprisonment. [I might here observe that the offence of dacoity having been committed and not merely attempted, the section that really applies is section 397 and not section 398, the section applied by the learned Sessions Judge. The finding is that accused 1, 4 and 5 put their victims in fear of instant death by pointing knives at them and thus effected the robbery. This is a sufficient use within the meaning of section 397, IPC where the word' "uses" is not to be narrowly construed as meaning that, if the weapon used is a knife there should be an actual stabbing, or, if gun an actual firing. It is quite enough if the deadly weapon is employed in some way or other as, for example, to intimidate. It is not necessary that it should be actually used for the special purpose for which it is designed. This" is quite apparent from a comparison of section 397 with section 398 in which latter section, dealing with a mere attempt as distinguished from a completed offence, it is enough if the offender is armed with a deadly weapon to make him liable for the same minimum sentence of seven years' imprisonment. Hence the word "uses" in section 397 must be given as wide a meaning as possible; else we are driven to the absurdity that an offender who merely brandishes a deadly weapon is not liable to the minimum sentence of seven years' imprisonment imposed by sections 397 and 398 if he completes the robbery but is so liable if he stops short with an attempt -- See Nga I v Emperor (13 Criminal Law Journal page 267) for a very trenchant discussion of the question]. All the accused persons have been sentenced to two years' rigorous imprisonment under section 450 IPC; accused 2, 3 and 6 to six years' rigorous imprisonment under section 395 IPC; accused 1, 4 and 5 to seven years' rigorous imprisonment under section 395 read with section 398 IPC; and the sentences are to run concurrently. 2. The dacoity is alleged to have taken place in the house of P. W. 1 who lives in a village called Meenadom about 10 miles south east of Kottayam. The 6th accused belongs to Meenadom, while accused 1 to 5 belong to places in the neighbourhood of Palai, 18 miles north east of Kottayam. The 5th accused is the brother-in-law of the 1st accused and accused 3 and 4 are brothers. 3. P. W. 1 was living with his 80 year old father, P. W. 2, his wife P. W. 3, and his two sons aged 14 and 8, of whom the elder has been examined as P. W. 4. He used to keep his money in a box in his house, and, at one time, he had a fairly considerable sum of money, part of it borrowed by pledging his wife's ornaments for the purpose of the treatment of his younger son, a chronic invalid. However, at the time of the offence, he had run through all his money having spent about Rs. 1000/- on putting up a building and over Rs. 2000/- on the treatment of his son. 4. The occurence took place some time after midnight on the night of the 15th August 1959. On that night P. W. 2 was, as usual, sleeping in the verandah of the house, while P. Ws. 1 and 3 and their children were sleeping in the western of the two rooms. Some time after midnight P. W. 2, woke up on hearing someone calling out to his son, P. W. 1, by name from the yard of the house. P. W. 2 asked if it was P. W. 16. (a nephew of his living in the adjoining compound who used to patrol the compound by night because of the frequent theft of coconuts and used to keep watch sometimes from P. W. 1's house) that was calling P. W. 1 and, on receiving an answer in the affirmative, he called out to P. W. 1. (a nephew of his living in the adjoining compound who used to patrol the compound by night because of the frequent theft of coconuts and used to keep watch sometimes from P. W. 1's house) that was calling P. W. 1 and, on receiving an answer in the affirmative, he called out to P. W. 1. P. W. 1 woke up, lit a lamp and came out. After placing the lamp on a table in the verandah he began rolling up the bamboo screen in the doorway giving access to the verandah, and as he was doing so, the six accused got into the verandah one by one. The 1st and 2nd accused caught hold of P. W. 1 and led him into the western room of the house followed by accused 3 and 4. The 5th and 6th accused stayed behind in the verandah keeping guard over P. W. 3, the 5th accused pointing a knife at P. W. 2 and threatening to kill him if he spoke or moved. After taking P. W. 1 into the room, the 1st and 2nd accused made him sit on his cot, and the 1st accused pointed a dagger at him and silenced him putting him in fear of instant death. Then the 2nd accused asked P. W. 1 where his boxes were. P. W. 1 pointed out three boxes in the room. The 2nd accused searched those boxes, but they contained nothing valuable. Meanwhile P. W. 3 had gone to the eastern room in an attempt to shut herself up in that room. But the 3rd and 4th accused followed her into the room, pushing open the door. The 3rd accused caught hold of her while the 4th accused pointed a knife at her. Then the 3rd accused snatched away the gold chain which P. W. 3 was wearing P. W. 3 not resisting for fear of the knife. (The chain weighed about half a sovereign. It was of the pattern known as "Chakkrakanni" and had a 'V' shaped clasp and a small pendant). Then the six accused left the place. 5. P. W. 4, who had woke up and seen what was happening, ran away frightened as soon as the 3rd and 4th accused entered the eastern room where P.W.3 had taken shelter, and he went to the house of a neighbour and raised a hue and cry. Then the six accused left the place. 5. P. W. 4, who had woke up and seen what was happening, ran away frightened as soon as the 3rd and 4th accused entered the eastern room where P.W.3 had taken shelter, and he went to the house of a neighbour and raised a hue and cry. The neighbour (who is not a witness) came to P.W.1's house with P.W.4. But by then the accused had made good their escape. Other neighbours also came, and P.Ws. 1 to 4 told them what had happened. Since P.W.1 had no clue whatsoever as to who the robbers were, he was advised that it would serve no purpose to make a report to the police and he readily fell in with this advice because he had already sufficient worries on his hand. 6. On the 25th August 1959, the 1st and 5th accused were arrested by P. W. 15, the Sub-Inspector of Police, Meenachil in connection with some other crime and, as a result of information given to him by the 1st accused, P. W. 15 sent the memorandum, Ext. P. 13, to P. W. 17, the Sub-Inspector of Police, Pampady. On receipt of this memorandum, P. W. 17 made enquiries and traced P. W. 1 from whom, on 30-8-1959, he recorded the statement Ext. P.1 on which the present case was registered and investigated. (Objection has been taken to the receipt of Ext. P.1 in evidence on the score that it is not the first information and is hit by section 162 Cr. P. C. It is said that Ext. P. 13 is really the first information. This objection was overruled by the learned Sessions Judge and in my view rightly overruled, in view of the fact that Ext. P.13 while disclosing that a cognizable offence had been committed by the accused contained no specific information so as to make it an information falling under Section 154 of the Criminal Procedure Code. The real objection ought to have been to the reception of Ext. P. 13 which embodies the confession made by the 1st accused to P. W. 15, a police officer. But since no use has been made of Ext. P. 13 its wrong reception in evidence is hardly material). The real objection ought to have been to the reception of Ext. P. 13 which embodies the confession made by the 1st accused to P. W. 15, a police officer. But since no use has been made of Ext. P. 13 its wrong reception in evidence is hardly material). The 3rd and 4th accused were arrested on 27-8-1959 and 29-8-1959 respectively, but the 2nd and 6th accused were not arrested until 4-10-1959 and 3-11-1959 respectively. Meanwhile, on 12-9-1959, P.W.5, the 1st Class Magistrate, Meenachil had held an identification parade in which accused 1, 3, 4 and 5 were mixed up with 19 other persons. At this parade, P. W. 3 correctly pointed out accused 1, 3, 4 and 5 while P.Ws.1 and 4 pointed out accused 1, 3 and 4. None of these witnesses pointed out any wrong person. P. W. 2, an old man of poor eyesight, who does not pretend to have been able to see any of the offenders well enough to make them out, was not taken to the parade. 7. P.W.9 is a man who works in the Palai bus stand canvassing passengers, and his evidence is that at about 5 p.m. on the 15th August he saw all the accused board a bus bound for Kottayam in a body and that again, at about 6.30a.m. on the 16th, he saw all of them get down at the bus stand from a bus coming from Kottayam. 8. P. W. 10 runs a cafe near the Palai bus stand and his evidence is that on the morning of the 16thAugust the six accused went to his shop in a body and had coffee there. 9. At about 10 a. m. on 16-8-1959 accused 1 and 3 went to the shop of P. W. 8, a jeweller of Palai, and the 3rd accused handed over to P. W. 8 a gold chain with a pendant of the same description and weight as P. W. 3's stolen chain. P. W. 8 bought the chain for Rs. 29-8-0 and he lost no time in converting the gold into the medallions, M. O. 1 series, which were seized from him by the police on 2-9-1959. 10. Exts. P. 3 to P. 6 are confessions duly recorded by the Magistrate, P. W. 5, from accused 1, 3, 4 and 5 respectively under section 164 Cr. P. C., Ext. 29-8-0 and he lost no time in converting the gold into the medallions, M. O. 1 series, which were seized from him by the police on 2-9-1959. 10. Exts. P. 3 to P. 6 are confessions duly recorded by the Magistrate, P. W. 5, from accused 1, 3, 4 and 5 respectively under section 164 Cr. P. C., Ext. P. 4 on 13-9-1959 and Exts. P. 3, P. 5 and P. 6 on 20-9-1959. Before recording the confessions P. W. 5 administered the prescribed warnings and gave the accused a day's time for reflection. He questioned each accused with a view to ascertain whether any pressure was being brought to bear upon him and was satisfied from the answers given that the confession was being voluntarily made. 11. This is the evidence against the accused. 12. The accused's defence was throughout one of complete denial. They pleaded complete ignorance of the incident spoken to by the prosecution. Accused 1, 3, 4 and 5 further alleged that their confessions were wrung out of them by threats, inducements and torture on the part of the police. Also that the parade at which they were identified was not fairly conducted. 13. The accused examined no witnesses in their defence. 14. That a robbery -- the theft of P. W. 3's necklace by placing her and P.Ws.1 and 2 in wrongful restraint and putting them in fear of instant death for that purpose is nothing short of robbery -- in which six persons participated took place in the house of P. W. 1 as spoken to by P. Ws. 1 to 4, I see no reason to doubt. It is too much to say, as the accused persons have done, that the police have concocted a completely false case against them and persuaded P. Ws. 1 to 4, who have nothing against the accused, and nothing to gain thereby, to come forward with false evidence in support of that case. The prosecution would no doubt have done well to examine some at least of the neighbours who gathered at P. W. 1's house immediately after the occurrence and to whom P. Ws. 1 to 4 reported what had taken place, especially in view of the fact that no immediate report was made to the authorities by P. W. 1. The prosecution would no doubt have done well to examine some at least of the neighbours who gathered at P. W. 1's house immediately after the occurrence and to whom P. Ws. 1 to 4 reported what had taken place, especially in view of the fact that no immediate report was made to the authorities by P. W. 1. But despite this failure on the part of the prosecution, I can think of no reason why P. Ws. 1 to 4 should invent a completely false story of a dacoity having taken place in their house on the night in question. For P. W. 1's failure to make a complaint to the police, the explanation given by him seems reasonable enough. 15. The question then is whether it has been proved beyond reasonable doubt that the accused persons were the offenders. 16. In considering this question I might say at the very outset that I would not convict any of the accused on the strength merely of the evidence of P.Ws. 1, 3 and 4 that they were able to make out the offenders so clearly at the time of the occurrence as to place their identity beyond doubt. Apart from that, that it was night time and that the witnesses must have been very excited, as also that the robbers had covered their heads with a cloth apparently with a view to hide their features as far as possible, there is this very important circumstance to be considered. The evidence of P. W. 1 is that all the robbers were strangers and that is what he said also in the first information, Ext. P. 1. In fact his principal explanation for not reporting the matter to the police forthwith was that he thought it useless to do so in the absence of any clue as to who the offenders were. But, it would appear from the evidence of P. Ws. 3 and 4, that the 6th accused is a neighbour whom they knew by name and who used to visit their house occasionally. The inference I would draw is that P. Ws. 1, 3 and 4 were unable to make out the 6th accused, a person whom they knew quite well, as one of the robbers -- in fact P. Ws. The inference I would draw is that P. Ws. 1, 3 and 4 were unable to make out the 6th accused, a person whom they knew quite well, as one of the robbers -- in fact P. Ws. 3 and 4 did not say in their evidence that the 6th accused was one of the six robbers, only P. W. 1 did. It is true that the 6th accused, according to P. W. 1's evidence, stationed himself in the verandah keeping guard over P. W. 2, so that P. Ws. 3 and 4 and to a lesser extent P. W.1, had no opportunity of seeing him at close quarters. Even so, if they were unable to make out a person whom they knew quite well, I do not think that their identification of persons whom they were seeing for the first time that night can be accepted to found a criminal conviction, unless there is material corroboration to show that that identification is not mistaken. 17. The evidence of P. Ws. 9 and 10 which goes to show that the six accused were moving about in a body on the evening of the 15th and on the morning of the 16th, that on the evening of the 15th they boarded a bus bound for Kottayam which lies on the way to the scene of offence, and that on the morning of the 16th they returned to Palai in a bus coming from Kottayam, is of no great probative value even if it is taken at its face value. 18. Against accused 2 and 6 there is no other evidence although of course there are the confessions, Exts. P. 3 to P. 6, by the remaining four accused implicating them in the crime. These can no doubt be taken into consideration against accused 2 and 6 under section 30 of the Evidence Act. But, even taking those confessions into account, I do not think they lend such assurance to the identification made by P. Ws. 1, 3 and 4 as to put it beyond reasonable doubt that accused 2 and 6 were among the robbers. 19. The position regarding the remaining accused, namely accused 1, 3, 4 and 5 is different. But, even taking those confessions into account, I do not think they lend such assurance to the identification made by P. Ws. 1, 3 and 4 as to put it beyond reasonable doubt that accused 2 and 6 were among the robbers. 19. The position regarding the remaining accused, namely accused 1, 3, 4 and 5 is different. In the first place we have their confessions, Exts, P. 3 to P. 6, which fully disclose their complicity in the crime and which are completely in keeping with the evidence of the prosecution witnesses. It is true that these confessions were retracted at the very first opportunity, namely, at the preliminary enquiry, but in the face of the evidence of the Magistrate, P. W. 5 who recorded the confession, and in the face of what is disclosed by the record of the precautions he took to ensure their voluntary nature, it is difficult to accept the bald assertion of the accused that the confessions were wrung out of them by police torture. Notwithstanding that the confessions were subsequently retracted, I think it would be safe to accept the confessions as voluntary. 20. Next, so far as accused 1 and 3 are concerned, there is the evidence 1 of the jeweller, P. W. 8, that on the morning of the 16th these accused persons went to him and sold him a gold chain with a pendant answering to the description of P. W. 3's stolen jewel. It might be said that P. W. 8's own conduct with regard to this transaction, if indeed it took place, is not above suspicion; and, by itself, this is not a piece of evidence on which I would set much store. But I think that, like the evidence of P. Ws. 9 and 10 regarding the movements of the accused on the evening of the 15th and morning of the 16th, it is evidence of some corroborative value. 21. The evidence of the eyewitnesses, P. Ws. 1, 3 and 4 supported as it is by the confessions, Exts. P. 3 to P. 6 made by accused 1, 3, 4 and 5 seems to me sufficient to bring home their guilt to these accused persons. 22. 21. The evidence of the eyewitnesses, P. Ws. 1, 3 and 4 supported as it is by the confessions, Exts. P. 3 to P. 6 made by accused 1, 3, 4 and 5 seems to me sufficient to bring home their guilt to these accused persons. 22. So far as accused 1, 3, 4 and 5 are concerned I see no reason to interfere with the convictions and sentences recorded against them, although, as I have remarked at the beginning, it would have been more appropriate to read section 397 rather than section 398 I. P. C. with section 395 in convicting accused 1, 4 and 5 of dacoity. I dismiss the appeals so far as they relate to accused 1, 3, 4 and 5. 23. I allow the appeals so far as they relate to accused 2 and 6. I set aside the convictions and sentences passed against these accused persons and acquit them. They will be set at liberty forthwith.