JUDGMENT 1. Out of the eight accused who have all been acquitted by the learned Sessions Judge, Alwar by his judgment under appeal, the accused Kurdia, Sunda, Hukma, Teja and Bakhtawar were tried for offence under section 395/397 IPC and the rest of the accused namely, Gomtidas, Richpalsingh and Bahadurmal were charged under section 120-B IPC all of them were acquitted. Aggrieved by the order of acquittal dated 9th June, 1961, the State filed this appeal against, Kurdia, Sunda, Hukma, Teja and Bakhtawar. The complainant Gyarsilal filed a revision application against all the eight accused. The appeal against Bakhtawar and Hukma was decided on 28th November, 1963 and both the accused Bakhtawar and Hukma were convicted under section 395 IPC and sentenced to five years rigorous imprisonment each. By the same judgment, the revision application was also dismissed. However, the appeal could not be decided against the accused-respondent Kurdia, Teja and Sunda as they had absconded and could not be arrested. That is the reason why the appeal has remained pending for all this time. Out of the rest of the three accused only Kurdia has been arrested. The other two Sunda and Teja have not been arrested so far. We are, therefore, called upon to decide this appeal again in part against the accused-respondent Kurdia only. Since Kurdia was unrepresented. Shri G. S Singhvi, a learned Advocate of this court, was appointed amicus curie to argue the case on behalf of the accused-respondent Kurdia. 2. Briefly stated the prosecution case is that on the night intervening 27th & 28th of January, 1960 a big dacoity was committed on the house of Gyarsilal Mahajan in village Hibuchana Tehsil Bansur, in the course of which cash, ornaments and other valuables valued at about Rs. 56,000/-were looted by the dacoitt. Gyarsilal and his two brothers Bishambhar Dayal and Banarsilal used to reside with their families in a `Haweli' composed of two houses as shown in the site plan Ex. P/18. Both the houses are double-storeyed. The house with a courtyard ha* been described as the old house, while the house towards the south attached to it has been designated as the new house. Gyarsilal was sleeping in the room No, 8 as shown in the site plan Ex. P/18. In a steel almirah lying in that room there were currency notes of Rs. 5000/-and also certain other valuables. Gyarsilal was sleeping in the room No, 8 as shown in the site plan Ex. P/18. In a steel almirah lying in that room there were currency notes of Rs. 5000/-and also certain other valuables. PW/25 Sushila daughter of Gyarsilal and Kamla, daughter in law of Gyarsilal were sleeping in room No. 5 Smt. Gulabi wife of Gyarsilal was sleeping in room No. 6 and PW/4 Bishambhardayal, brother of Gyarsilal was sleeping with his family in room No. 7. In the old house an iron -safe was lying in room no. 18 on the ground floor and in room No. 22 on the first floor of the old house was sleeping Smt. Kamla wife of Banarsilal PW/24, another brother of Gyarsilal. It is alleged that seven or eight dacoits including the five accused-respondents namely, Kurdia, Sunda, Hukma, Teja and Bakhtawar committed the dacoity. Some of them were armed with pistols and guns and the rest of them were armed with lathies. The dacoits effected their entry into the first floor of the new house through a window after climbing with the aid of a `Balli'. Smt. Gulabi woke up on account of the sound produced by the dacoits in the process of making their entry into the house and she asked her daughter in law PW/37 Kamla to see what the matter was. On seeing a dacoit, Kamla raised hue and cry and attempted to close the door and the dacoit' pounced upon her. By this time Gyarsilal also awaken. He came out of the room but the dacoits beat him and made him shift outside the room. On being questioned as to the whereabouts of Gyarsilal.. Gyarsilal posed to be a stranger and informed the dacoits that Gyarsilal had gone to Bansur. The dacoits then made enquiries from the daughter and daughter-in-law to hand over the key of the iron safe. They tied the hands of Bishambhar Qayal and brought him out of his room and made him also sit in the `Jangla'. Enquiries were also made from him about Gyarsilal but he also stated that Gyarsilal had gone to Bansur. Thereafter the dacoits went into the old house where they gave a beating to Smt. Kaushalya and asked her to hand over the key of the safe but she too did not hand over the key. Enquiries were also made from him about Gyarsilal but he also stated that Gyarsilal had gone to Bansur. Thereafter the dacoits went into the old house where they gave a beating to Smt. Kaushalya and asked her to hand over the key of the safe but she too did not hand over the key. Thereupon the dacoits ransacked the boxes lying in room No. 5 and found out the keys. Some of the dacoits then opened the safe and brought out valuable ornaments from it. Thereafter the Afmirah was broken open and it yielded a rich harvest to the dacoits. Some of the dacoits took Smt. Kaushalya to her room in the old house and from there after opening the boxes obtained certain ornaments and cash. All this took about three hours and after having collected a good booty, the dacoits left the house of Gyarsilal. In the course of committing dacoity they also fired shots from the guns and pistols in order to frighten the villagers and to keep them dead. P.W/35 Sheonarain singh went to the Police Station Nrayanpur and lodged a first information Report Ex. P/44 at 4 P.M. and a case was registered by Station House Officer Mahabirsingh PW/39 who proceeded to the spot and conducted the necessary investigation. 3. At this stage, we are concerned with Kurdia only and, therefore, we shall confine ourselves only to the evidence against Kurdia. He was arrested on 22nd February, 1960 at Mahendragarh in Punjab. He was put up for identification in the course of investigation on 25th February, 1960. Shri M.N. Singh PW/12, Munsiff Magistrate, Alwar conducted the identification proceedings. It is further alleged by the prosecution that Kurdia furnished information regarding the ornaments concealed by him on 2nd April 1960. The Police was taken by him to Rohi Moza Palani in Punjab and nineteen gold ornaments (Articles I to 17, 22 and 23) were recovered at his instance from an earthen pot dug out from under the earth. 4. In the course of trial Kurdia, like other accused, pleaded not guilty and as already stated above the learned Sessions Judge acquitted all the accused. He held that a dacoity was undoubtedly committed at the house of Gyarsilal on the night intervening 27th and 28th January, 1960 but he found that the prosecution case against the accused was/not established beyond doubt. He held that a dacoity was undoubtedly committed at the house of Gyarsilal on the night intervening 27th and 28th January, 1960 but he found that the prosecution case against the accused was/not established beyond doubt. His view is that the prosecution witnesses who identified the accused could not have done so far for want of a sufficient light as the dacoits must have broken all the chimneys and lanterns in the house. He has also observed that the prosecution witnesses must have been a state of terror and could not have noticed the features of the dacoits. He has do held that the identification proceeding held in the case was a farce in as much as explanation given by the accused that they had been previously shown to the prosecution witnesses before they were placed for identification was correct. He also held the recovery of ornaments at the instance of the accused as suspicious. Not only that, he went to the extent of holding that it might be that the ornaments' recovered were not, in fact, stolen and may have been handed over by Gyarsilal to the Police so that they may be got recovered at the instance of the dacoits. 5. We have heard the learned Public Prosecutor as well as Mr. G. S. Singhvi, Amicus Curie, It is proved by over-whelming evidence that a dacoity was committed at the house of Gyarsilal on the night between 27th and 28th January 1960. This has been held to be proved by the trial court and Mr. G.S. Singhvi has also not contested this position, and in our opinion, rightly so. The only point, therefore, for determination in this appeal is whether Kurdia was among the dacoits who committed the dacoity. The evidence against this accused consists of the statements of PW/1 Gyarsilal, PW/4 Bishambhar Dayal, PW/5 Gulzarilal, PW/6 Bhoora, PW/17 Chhotu and PW/24 Smt. Kaushalya and PW/25 Sushila. These witnesses claimed to have identified Kurdia among the dacoits who committed the dacoity. There is further evidence of recovery of gold ornaments (Articles 1 to 17, 22 and 23 at. his instance after he had given his statement under section 27;of the Indian Evidence Act marked Ex. P/50. PW/4 Bishambhar Dayal has stated that three persons entered his room and took him out of it and then tied his hands with a muffler. There is further evidence of recovery of gold ornaments (Articles 1 to 17, 22 and 23 at. his instance after he had given his statement under section 27;of the Indian Evidence Act marked Ex. P/50. PW/4 Bishambhar Dayal has stated that three persons entered his room and took him out of it and then tied his hands with a muffler. He has pointed out Kurdia as one of these persons. He goes on to state that Gyarsilal was injured and blood was trickling from his head on account of injury caused on his head and a chimney was burning in the room of Sushila, He also states that a lantern was burning at the `Jungla'. He had a talk with Kurdia who asked him whether the person sitting was Gyarsilal. Then those three persons entered the room in which there was an iron safe and asked him to hand over the key of that safe to him. Having collected the gold ornaments and currency notes from the Almirah the three dacoits entered the room where Shushila and Kamla were sleeping. It is also stated by this witness that these three persons took his daughter Guddo with them to the other Haveli and returned with Kaushalya. The witness identified the various articles which were recovered from the dacoits and which according to the witness belonged to his family. PW/1 Gyarsilal has stated that he saw the accused Bakhtawar coming to his room and he caught hold of Bakhtawar. He also states that Kurdia was among the three dacoits who came behind Bakhtawar after he had caught hold of Bakhtawar. Kurdia had a Pistol as well as a Lathi in his hands and he beat the witness with the Lathi. Thereby Bakhtawar got himself released from the grip of Gyarsilal. This witness also states that there was light of chimney in the room. Kurdia was one of the persons, who, according to the witness, enquired from him about the key of the safe. He corroborates the evidence of Bishambhar Dayal in all the details pertaining to the commission of the dacoity. The witness has further stated that the dacoits had stayed for about three and a half hours in his house. He has deposed that he had identified the accused Kurdia in the Jail correctly and he was not shown to him before the holding of the identification parade. The witness has further stated that the dacoits had stayed for about three and a half hours in his house. He has deposed that he had identified the accused Kurdia in the Jail correctly and he was not shown to him before the holding of the identification parade. It is stated by him that a lantern was burning in the room in which he was sleeping. It appears that the witness has also given the description of the dacoits towards the end of his Police Statement Ex D/1. 6. PW/24 Smt. Kaushalya who is one of the injured has stated that there was a kerosene dibbi burning at the relevant time in the room in which she was sleeping. PW/25 Smt. Sushila has also supported the prosecution case and both of them have correctly identified Kurdia in the identification parade. PW/5 Gulzarilal neighbour of Gyarsilal and PW/6 Bhoora, his servant, have also correctly identified Kurdia in the course of identification on proceedings recorded in Ex. P. 29 and proved by PW/12 Shri M.N. Singhal, Munsiff Magistrate, Alwar. Mr. Singhvi has argued that there was no sufficient light so as to enable these witnesses to identify the dacoits. However, it is clear from the statements of the prosecution witnesses referred to above that a chimney was burning in the room of Kamla and Sushila and a lantern was burning in the `Jungla'. There was also a lantern burning in the room where Gyarsilal was sleeping. PW/39 Mahabirsingh has stated that there were either a chimney or a lantern lying at the place of occurrence and they were in order. The witnesses have consistently stated that the dacoits stayed in the house for nearly long time and did not put off the lights. In these circumstances it would not be proper to say in face of this clear evidence that there was no light in which the dacoits could have been identified by the prosecution witnesses. We are also not prepared to accept the argument that the witnesses were terror-striken and must have lost their presence of mind and so could not have identified the dacoits. As already stated above, the dacoits stayed at the house for more than three hours and a deep impression must have been produced on the minds of the witnesses even though they were terror-striken. As already stated above, the dacoits stayed at the house for more than three hours and a deep impression must have been produced on the minds of the witnesses even though they were terror-striken. The dacoits carried on their activities for a considerably long time and thereby furnished a sufficient opportunity to the witnesses to identify them. Some of them were moving to and fro i.e. coming out and going up and, therefore it was not unnatural in the circumstances of the case if the witnesses noted the identity of the dacoits. 7. Learned counsel has also urged that sufficient safeguards were not taken by the Magistrate at the time of holding the identification parade in as much as the distinctive marks of the accused Kurdia were not concealed and mixed with the accused Kurdia. It is pointed out that Kurdia had a depressed eye and his upper lip was also abnormally cut and further that "Murkis" were worn by him in his ears. It has also been argued that the accused had stated both in the committing court as well at the trial that he had been shown to the witnesses, before the identification parade was held. In the circumstances of the case, we are unable to accede to this submission. PW/12 Shri M. N. Singhal Munsiff Magistrate, Alwar has stated that the cut over the moustache of Kurdia was not predominant and as such not absolutely visible. He also states that he had covered the scar mark on Kurdia with the turban of the accused and so also the "Murkis" in the ears were concealed with the turban. We have gone through the identification proceedings held by the learned Magistrate as well as his statement and are satisfied that the identification proceedings do not suffer from any infirmity and the accused Kurdia was correctly identified by PW/1 Gyarsilal. PW/4 Bishambhar Dayal, PW/5 Gulzarilal, PW/6 Bhoora P.W. 24 Smt, Kaushalya and PW/25 Smt. Sushila. It may be also pointed out that PW/39 Mahabirsingh SHO Police Station Narayanpur has clearly stated that the accused, after being arrested, was instructed to keep himself `Naparda' and he had kept him `Naparda' in the Thana also and the witness allowed no body to see him till he was sent to the judicial custody. It may be also pointed out that PW/39 Mahabirsingh SHO Police Station Narayanpur has clearly stated that the accused, after being arrested, was instructed to keep himself `Naparda' and he had kept him `Naparda' in the Thana also and the witness allowed no body to see him till he was sent to the judicial custody. He has further stated that he put up blankets as "Parda" on the cells of the Thana and that the accused Kurdia was also kept Naparda" at Alwar Jail till identification proceedings were held. Mr. Singhvi has criticised the evidence regarding recovery of the ornaments. He has urged that it is very unlikely that the recovery at the instance of the accused Kurdia should have been made from a place so close to the other places from where various recoveries were also made at the instance of Hukma and Sunda. He has further submitted that the ornaments were not at all soiled even though they had remained concealed for about a month and a half, 1st may be pointed out that the ornaments were put in an earthen pot which was concealed about two feet below the earth and, therefore, they could not have been soiled. The observation made by the learned Sessions Judge that Gyarsilal may have handed over the ornaments to the police so that the same may be recovered at the instance of the dacoits is in our opinion, ridiculous. The recovery of the ornaments vide recovery memo Ex.P./32 is amply proved in this case by the statements of Mahabirsingh and the Motbirs PW/38 Musaddilal and PW/14 Manglaram. We are satisfied that the recovery was made from the place mentioned in the recovery memo at the instance of and on the information supplied by the accused Kurdia. These ornaments were correctly identified by the prosecution witnesses and this position has also not been challenged before us and. in our opinion, rightly. The accused Kurdia too has not claimed these ornaments of his own. We are of the opinion that the learned Sessions Judge has rejected the evidence regarding identification as well as the recovery on wholly unwarranted and imaginary ground. 8. We have, therefore, come to the conclusion that the prosecution has succeeded in proving beyond reasonable doubt that Kurdia was among the dacoits who committed the dacoity in question. We are of the opinion that the learned Sessions Judge has rejected the evidence regarding identification as well as the recovery on wholly unwarranted and imaginary ground. 8. We have, therefore, come to the conclusion that the prosecution has succeeded in proving beyond reasonable doubt that Kurdia was among the dacoits who committed the dacoity in question. We are, however, satisfied that the number of dacoits who had committed the dacoity was five or more than five. 9. We are also satisfied that Kurdia had a pistol with him at the tirrte of committing dacoity. 10. We. therefore, allow the appeal against Kurdia and set aside the order of acquittal qua Kurdia. We Convict him under section 395 IPC and sentence him to five years rigorous imprisonment. It may, however, be observed that the period of detention, if any, undergone by him during the investigation, enquiry or trial of the case and before the date of conviction shall be set off against the term of imprisonment imposed on him and his liability to undergo imprisonment shall be restricted to the remainder. *******