JUDGMENT H. C. Pati Tripathi, J. - Criminal Appeal No. 2525 of 1963, filed by Het Ram and Criminal Appeal No. 92 of 1964, filed by Likhi, Fatte and Parshadi, are directed against a common judgment of the learned Civil and Sessions Judge of Bulandshahr, whereby he has convicted the appellants of an offence under Section 396 of the Indian Penal Code and has sentenced them each to undergo imprisonment for life. 2. The prosecution story may be stated briefly. Sub-Inspector Balbir Singh Chauhan, station officer of P. S. Siana, received information that an armed dacoity was to be committed in village Sathela, five miles to the west, within his jurisdiction. He made an entry about this information in the general diary and collected his force and having armed themselves with guns, revolvers, very light pistols and torches, the party proceeded towards the village. In the way, they collected some constables and men of the public from the police out-pot, Bhawan and then the party reached the outskirts of village Sathela at about 10-30 p.m. and stationed themselves in a Dharamshala. From there some members of the party, Sub-Inspector Khananpal and head constables Hukam Singh and Abdul Salam were sent to the Abadi of the village to trace out the person who was to be the victim of the dacoity. When Sub-Inspector Khananpal and the two head-constables had reached the Abadi of the village, they happened to meet Faqir Chand and Ramnath Nagar who informed them that a dacoity was being committed at the house of Faqir Chand. This information was immediately communicated to the main police party at the Dharamshala and then the entire force was divided into three groups led by Sub-Inspectors Balbir Singh Chauhan, Parmeshwari Lal and Khananpal respectively. The entire police party proceeded with Faqir Chand to his house and in the way Sub-Inspector Chauhan learnt from him the topography of the place of dacoity. Faqir Chand and his uncle Raghunath Prasad lived in two portions of the same house. Just to the east of Faqir Chands house there is a lane about six feet wide and thereafter is situate his cattle-shed and to the north-east at a distance of about 15 yards lies the house of Mohan Nai. In front of Faqir Chands house there is an open space and a raised platform. Just to the east of Faqir Chands house there is a lane about six feet wide and thereafter is situate his cattle-shed and to the north-east at a distance of about 15 yards lies the house of Mohan Nai. In front of Faqir Chands house there is an open space and a raised platform. On the day of the occurrence a number of Makka bundles were stacked to the north-west of Faqir Chands house at a distance of about 16 yards. When the police party arrived at the place, they found that 15 or 16 miscreants were committing dacoity at the house of Faqir Chand. Some 11 or 12 of them were standing in the outer courtyard flashing their torches in all directions and the rest were going in and coming out of the house. According to the settled plan, Sub-Inspector Chauhans party took up position behind the cluster of Makka bundles, while the party led by Sub-Inspector Parmeshwari Lal went on the roof of the house of Mohan Lal. Khananpal and his men ascended the roof of the cattle-shed of Faqir Chand. Constable Kiratpal, who was in the group of Sub-Inspector Balbir Singh, flashed his torch towards the dacoits who retaliated with a gunfire. At this juncture, Sub-Inspector Khananpal started repeatedly firing from his very light pistol illumining the whole scene and all the three groups began firing towards the dacoits. The encounter continued for some time and four of the dacoits were shot dead at the spot and some members of the police party also received injuries. The other dacoits, however, managed to escape, some by going over the roof of the house and jumping to the south and others by running away through the lane. The dacoits who had died at the spot were subsequently identified by the villagers of the locality as Mullu Lohar, Ramdass, Vijaipal and Har Swarup residents of various villages lying within the jurisdiction of police station Siana and the neighbouring police station of Golaoti. Three country-made pistols, one from each, were recovered from the person of Mullu, Ramdass and Vijaipal and one fired cartridge was found lying in the barrel of the pistol which was with Ramdass. 24 fired cartridges and one hand-grenade which had been thrown towards the police party by the miscreants were also recovered from the spot along with a number of shoes. 24 fired cartridges and one hand-grenade which had been thrown towards the police party by the miscreants were also recovered from the spot along with a number of shoes. One Katan Lal was recognised at the spot by constable Kiratpal who happened to know him from before and the other witnesses were able to mark the features of the miscreants in the light produced by the firing of the very light pistol and the filashing of the electric torches by some of them. Raghunath Prasad, an inmate of the house had also received injuries at the hands of the dacoits when he was put to torture by them for extorting information from him regarding his valuables. 3. A report was sent to the police station by Sub-Inspector Balbir Singh Chauhan in which he gave the details of the occurrence and named the miscreants who had been recognised at the spot. On the basis of the report, a case was registered and investigation followed. Hcad-constable Hukam Singh, constable Kiratpal and Sub-Inspector Balbir Singh Chauhan were medically examined by Dr. R. S. Gupta at Siana Hospital on November 2, 1962 in the morning. Dr. Gupta found two contusions on Hukam Singh, seven on Kiratpal and four gunshot wounds on Balbir Singh Chauhan. Raghunath Prasad, too, was medically examined on the same date by Dr. Gupta who found one contused wound 1 x " x scalp in front of his forehead, one contusion below his left eye, two abrasions on his wrist, two abrasions on his left hand and a contused abrasion on the back of left hand. Raghunath Prasad was admitted as an indoor patient in the hospital apd he also complained of pain in his abdomen, but the Doctor could not detect any outward injury on his stomach. Raghunath Prasad died on November 3, 1962 at 4-15 p.m. 4. The postmortem examination on the dead body of Raghunath Prasad was conducted by Dr. A. N. Dwivedi (P.W. 31) at the Civil Hospital, Bulandshahr on November 4, 1962 at 3 p.m. and following ante mortem injuries were found :- 1. Contusion 2" x 1" on the left side of the lower abdomen. 2. Vertical contused wound 1" x " scalp on the right side forehead 2" above the eye-brow. 3. Contusion 1" x " below the left eye. 4. Abrasion " x 1" on the inner side of the wrist. 5. Contusion 2" x 1" on the left side of the lower abdomen. 2. Vertical contused wound 1" x " scalp on the right side forehead 2" above the eye-brow. 3. Contusion 1" x " below the left eye. 4. Abrasion " x 1" on the inner side of the wrist. 5. Abrasion 2" x 1" on the back of left hand. 6. Abrasion 1" x " on the back of root of the right thumb. 7. Abrasion 1" x " on the back of root of left thumb. 8. Abrasion 1" x " on the inner side of left wrist. 5. The entire peritoneum was found swollen and the intestines and omentum were adherent to it. The intestine was also torn. Death was due to peritonitis which had developed on account of injury No. 1 to the intestine. It will be noticed that injury No. 1 was not noticed by Dr. R. S. Gupta when he had medically examined Raghunath Prasad on November 3, 1962. 6. Appellant Likhi surrendered in court on November 15, 1962. From there he was taken to the Havalat by constable Ramcharan and was then escorted by a constable, Shiam Singh to the District Jail in a covered condition. Appellant Fatte was arrested on December 6, 1962 by Sub-Inspector, Sunder Singh (P.W. 18) in the town of Gulaoti. He was under cover taken to the police station and from there was escorted to Jail in the same condition by constable Suresh Chandra (P.W. 13). Parshadi appellant was arrested on November 28, 1962 by Sub-Inspector, B. S. Yadav (P. W. 47), was put under cover and was escorted to jail in the same condition on November 29, 1962, by constable Brahma Singh (P.W. 7). S. I. P. S. Pundir (P.W. 35) arrested Het Ram appellant on December 13, 1962, put him under cover and brought him to police station at about 3-30 a.m. Constable Ram Sarup (P.W. 16) escorted him to Jail on the same day and in the same condition. It has come in evidence that so long as these appellants had remained in police custody, they were kept under cover and none had an opportunity to see their faces. 7. It has come in evidence that so long as these appellants had remained in police custody, they were kept under cover and none had an opportunity to see their faces. 7. The test identification parade, in respect of these appellants was conducted by Sri Chandrahas Singh, Magistrate 1st class, in District Jail, Bulandshahr on December 28, 1962, wherein each of them was identified by a number of witnesses. Sri Chandrahas Singh (P.W. 29) has stated that he had taken ail the necessary precautions for ensuring a fair identification. 8. Appellant Likkhi was identified by a number of police personnel who had taken part in the encounter with the dacoits, namely S. Is. Chauhan, ana Khananpal (P.Ws. 1 and 2), constables Hafizuiiah (P.W. 4), Shivajit (P.W. 6) and Harbans Singh (P.W. 24) besides by Faqirchand (P.W. 8) and Amar; Smgh (P.W. 17)-the two members of the public. This appellant was also named by constables Kiratpal (P.W. 5) and Mohammad Said (P.W. 26) who knew him from before. On his arrest, he was examined by Dr. S. N. Dutta (P.W, 32) and was found to have a number of injuries on his person. 9. Appellant Fatte was identified by B P. Ws. 1 to 5, 22, 24 and 26, who were the members of the police force and also by Faqirchand, Shera and Amar Singh men from the public. On medical exa-B mination, injuries were found on him person as well. 10. Appellant Parshadi was identified by P. Ws. 1, 2, 3, 4, 22, 24, 26, 27 and and also by Faqirchand, Shera, Am Singh and Ram Chandra who are from the village where the dacoity had taken place. Dr. Dutta has testified to have found injuries on his person and a country made pistol and some ammunition's had also been recovered, at the time of arrest, from his possession. 11. Appellant Hetram was identified by Faqirchand, Amar Singh, Ram Chandra and Jamil who are from the public and also by P.Ws. 1, 2, 5, 22, 26, 27 and 28, who were members of the police force and had taken part in the encounter I with the dacoits. Thus it is clear that there is a large number of identification evidence against each of these appellants. 12. At the trial, the appellants pleaded not guilty to the charge and denied there complicity in the crime. Thus it is clear that there is a large number of identification evidence against each of these appellants. 12. At the trial, the appellants pleaded not guilty to the charge and denied there complicity in the crime. All of I them stated to have been implicated in I the case on account of enmity. Hetram stated that he was arrested on December 12, 1962 and not on December 13, 1962, as alleged by the prosecution and I was then shown to the witnesses. 13. The learned Sessions Judge, however, relying upon the evidence of identification furnished by the aforesaid witnesses and also on the fact that, some of I the appellants were found injured on I medical examination, held the ease of I the prosecution established against them I and convicted and sentenced them as I has been indicated earlier. 14. The learned counsel for the appellants has not challenged the factum of lacoity. It has, however, been argued that the identification evidence furnished by the witnesses does not inspire confidence and the conviction of the appellants on its basis is unsustainable. It has been urged that as, according to the prosecution, the miscreants and the police party had indulged in incessant firing against each other, it was not reasonably possible for the witnesses to have marked the features of the miscreants in such a manner as to keep its impression in their mind and be able to pick them out several months after the date of the occurrence. It has been specifically urged that Hetram appellant had one of his ears deformed and precaution taken by the learned magistrate was not sufficient to conceal his deformity and as such the possibility of his being identified at the parade by the witnesses on account of his deformed ear cannot be ruled out. We are unable to agree with these contentions. 15. We are unable to agree with these contentions. 15. The testimony of the eye witnesses, some of whom had received injuries at the hands of the miscreants, leaves no room for doubt that a dacoity was committed at the house of Faqir Chand during the course of which his uncle Raghunath Prasad was given a severe beating by the dacoits and an encounter had taken place between them on the one hand and the members of the police force on the other, resulting in the death of four miscreants at the spot and in a number of gunshot wounds and contusions on some of the members of the police party. It has come in evidence that immediately before and during the encounter. 8 shots were fired from a very light pistol and that some of the constables in the police party had flashed torches to-words the dacoits. There can. therefore, be no doubt that there must have been sufficient light to enable the witnesses to mark the features of the miscreants. The three police parties had quietly taken positions near-about the house of Faqir Chand and two of them were occupying the nearby roofs from where they could have a commanding view of Faoir Chands outer court-yard. It has come in evidence that most of these dacoits were first standing in the outer court-yard of Faqir Chands house and it was from there that they had indulged in firing shots against the respective police parties. It is also in evidence that the dacoits escaped by going through the lane which runs between Faqir Chands house and his cattle-shed on the roof of which one of the police parties had stationed themselves and also by jumping from the roof of Faoir Chand in the lane behind. There could, therefore, be no difficulty for the witnesses to have seen them in the light of the very light pistol and torches and to have marked their features. In fact, there was a hand-to-hand fight on the roof of Faqir Chands house between the dacoits and some of the constables, namely, Kiratpal and Hukam Singh, who had received contusions at their hands. One of the parties which had stationed itself behind the stack of Makka bundles could easily peep through it at the dacoits. In fact, there was a hand-to-hand fight on the roof of Faqir Chands house between the dacoits and some of the constables, namely, Kiratpal and Hukam Singh, who had received contusions at their hands. One of the parties which had stationed itself behind the stack of Makka bundles could easily peep through it at the dacoits. The learned Sessions Judge, who had made an inspection of the locality, believed that the witnesses must have had sufficient opportunity to mark the features of the miscreants and we see no reason to differ from him. We are, therefore, satisfied that the witnesses were in a position to identify the appellants at the spot and there is nothing on the record to show that the allegation of these appellants that they were shown to the witnesses by the police is correct. 16. Sri Chandrahas Singh, Magistrate, 1st Class, has testified that he had taken all precautions for ensuring a fair identification and similar persons were mixed with the suspects. The deformed ear of Hetram was put under cover and same was the case with those who were mixed with him. We are, therefore, satisfied that the evidence of identification furnished by the witnesses against each of these appellants is reliable and the witnesses had been able to pick them out at the parade because they had seen them at the time of the commission of the dacoity. Injuries were found on the person of some of the appellants and ammunition was recovered from the possession of some of them. We are, therefore, satisfied that on the evidence on the record it is established beyond doubt that these appellants had participated in the commission of the dacoity at the house of Faoir Chand, as has been alleged by the prosecution. 17. Lastly it was argued that the medical evidence shows that Raghunath Prasad had received only simple injuries which were not likely to have resulted in his death in the ordinary course and, therefore, none of the appellants could be convicted for an offence under Section 396 I.P.C. It was urged that all the injuries found on the person of Raghunath Prasad by Dr. R. S. Gupta were of a simple nature, having been caused by some blunt object and the testimony of Dr. R. S. Gupta were of a simple nature, having been caused by some blunt object and the testimony of Dr. Dwivedi who had performed the post-mortem examination shows that the possibility of the victim having survived, if properly treated, cannot be ruled out. We find some force in this contention. Section 396 I.P.C. is applicable only if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity. In the instant case, Raghunath Prasad had died due to peritonitis resulting from the injuries to his intestines. When he was examined by Dr. Gupta, the latter could not find any external injury on his abdomen although such an injury was noticed at the time of his post mortem examination. That shows that when Raghunath Prasad was first taken to Siana hospital, the doctor failed to notice the injury on his abdomen and therefore, could not realise its serious ness, although the patient was complaining of pain in that region. It may be that if that injury had been noticed in time by Dr. Gupta and if the patient had been given proper treatment, might have resulted in preventing development of peritonitis and thereby saving him from death. In the circumstances, we are of opinion that it cannot be said that any one of these dacoits has committed murder of Raghunath Pm sad within the meaning of Section 396 I.P.C. We are, therefore, of opinion tin they cannot be convicted under Section 396 I.P.C. 18. Accordingly, we allow these two a peals in part and set aside the conviction and sentence of the appellants recorded by the learned trial Judge order Section 396 I.P.C. We, however convict all these appellants under Section 395 I.P.C. and sentence them each to ten years rigorous imprisonment. They are in jail and shall serve out the sentence awarded to them by us. With this modification in their sentence, the appeals are dismissed.