JUDGMENT 1. - Hazara Singh, Sayan Singh, Phool Singh and Banwari Lal appellants, who have been convicted by the learned Sessions Judge, Jhunjhunu for the offence under section 395 read with section 397 IPC and, each of them sentenced to undergo rigorous imprisonment for seven years, have preferred these appeals, one represented i.e. No. 617/1974 and the other from Jail i.e. No. 634/ 1974. 2. The prosecution case in brief is that in the evening of 12.10.1972 at about 6.30 p.m. 8 or 10 persons came to the house of Gopi in village Sukh-ram-ka-bas in order to commit dacoity duly armed with guns, sword, pistol & lathis and they began to fire guns, three of the dacoits entered into his kotha and began to collect his moveables. One of them remained on guard at the gate of the house. Man Singh, Lalchand Karantsing and others tried to capture them and in that they suffered injures from pistol, gun, sword and lathis. Mst. Geeta, Mst. Sheokori, Mst. Bhateri and Sheo Prasad also came there and threw bricks on the dacoits and gave them beating. Some of the dacoits were also injured and one of them died at the spot while others ran away and they were chased. However, one other dacoit who to, was badly injured was captured and was brought back and he also died and others made good their escape. Gopi lopged an oral report with the Police Station Surajgarh which is about 5 miles away from the village Sukhram-ka-bas at about 9 p.m. on the day of occurrence i.e. on 12.10.1972 that when he returned from Surajgarh to his house, he found Shri Parashad & Nanchi Daryasingh, Mansingh, Lalchand, Karan Singh and Thanaram in the injured condition. Besides one Punjabi and a Sikh were also lying dead. He gathered that 8 or 10 persons came to his house in order to commit dacoity and fired guns and looted the movables from his kotha. When they were intervened, they suffered injuries. Two of the dacoits were badly injured, one fell down and died at the spot the other was also chased and brought back and he also fell down and died. When they were intervened, they suffered injuries. Two of the dacoits were badly injured, one fell down and died at the spot the other was also chased and brought back and he also fell down and died. On this report a case was registered and the Investigating Officer reached the spot on that very night In the next morning he obtained a list of articles taken away by the dacoits from Gopi P.W. 8 and thereafter he started investigation of the case. He seized two purses from there and one of them contained arm licence which showed that the dacoits may be residents of Fativabad District. Thereafter, he went to Fativabad on October 16, 1972 and apprehended three accused on dated October 25, 1972. He again went to Fativabad and apprehended two more accused, Two accused Kushal Singh and Bantasingh were found to be absconding. The arrested accused persons other than Prabhu who was charged under section 120 B and was acquitted) were put to test identification parade by the witnesses. On the information of Banwari accused certain clothes Articles 3 to 6, which were said to have been taken by the dacoits, were recovered and identified by the witnesses before the IInd Class Magistrate Chitawa After completing the investigation the appellants along with Prabhu were challaned in the court of Munsif Magistrate Chirawa and two other accused Kushal Singh and Banta Singh were shown to be absconding in the challan. The Magistrate after holding the committal proceedings committed the appellants to face their trial for the offence under sections 395/397, 398 and 307 IPC and accused Prabhu was also committed for the offence under section 120 B read with 395, 397, 398 and 307 IPC. 3. The prosecution' examined 18 witnesses in' support of its case. The accused persons, denied the prosecution case and pleaded, that they have falsely been implicated in the case. The defence version was that Gopi sold a chamar lady (wife of Matu) to Inder Singh and Banta Singh but she did not stay there, Therefore, Inder Singh and Banta Singh along with others came there to send back that lady or refund the amount of Rs. 7,300/- paid in lieu of her. In that incident two Punjabis died at the hands of the family members of Gopi and in order to save their liability this false version has been concocted. 7,300/- paid in lieu of her. In that incident two Punjabis died at the hands of the family members of Gopi and in order to save their liability this false version has been concocted. It was also pleaded that they were shown to the prosecution witnesses, However they did not lead any defence. After trial the learned Sessions Judge, acquitted Prabhu accused against whom the prosecution case was the though he was not present on the spot at the time of commission of the dacoity yet it was suspected that he might have managad the dacoity as he came to borrow some money from Gopi a few days before the occurrence along with two unknown persons out of which one was identified to be Banwari. The learned Sessions Judge held that from the evidence produced on record it cannot be said that Prabhu abated the commission of the dacoity. He, therefore acquitted the accused Prabhu and convicted and sentenced the appellants mentioned above. 4. I have heard the arguments of the learned counsel for the appellants and the learned Public Prosecutor and have gone through the record of the case. 5. The contention of the learned counsel for the appellants is that the learned Sessions Judge has erred in holding that there had been a dacoity and has wrongly rejected the defence version of having come there to demand the return of the lady sold by Gopi or refund the amount of Rs. 7,300/- paid in lieu of her. 6. Another contention of the learned counsel for the appellants is that the identification of the accused by witnesses has been wrongly believed by the learned Sessions Judge the appellants were shown to the Prosecution witnesses and the witnesses did not furnish any particular of the persons who were to be identified by them. It has, therefore, been contended in these circumstances that the identification has wrongly been relied upon by the learned Sessions Judge. 7. It has further been contended that the alleged recovery has been wrongly relied upon by the learned Sessions Judge for convicting the appellants as the recovered articles were of the most common pattern & of very insignificant value and were recovered from a place accessible to all. Moreover the conviction under section 397 IPC is wrong. 8. 7. It has further been contended that the alleged recovery has been wrongly relied upon by the learned Sessions Judge for convicting the appellants as the recovered articles were of the most common pattern & of very insignificant value and were recovered from a place accessible to all. Moreover the conviction under section 397 IPC is wrong. 8. The learned Public Prosecutor has supported the judgment of the learned Sessions Judge and has submitted that as the `recovery of certain articles is concerned, this circumstance has not been made a basis of conviction and as regards the identification the learned Sessions Judge has discussed in detail the various contentions raised on behalf of the appellants against the identification and those have been rightly rejected by the learned Sessions Judge. As regards the contention of the learned counsel that the appellant did not come there for committing dacoity but came there for getting the refund of Rs. 7,300/- alleged to have been paid by them to Gopi for the purchase of a chamar lady, wife of Matu, there is no evidence to support the defence version or even to raise a probability of such a fact being probably true and the learned Sessions Judge rightly rejected the defence version and on the basis of the prosecution evidence he has come to the conclusion that the' appellants along with others duly armed with guns, lathis, Pistol etc. came to the house of Gopi for committing dacoity and they committed dacoity and caused injuries to the persons who tried to capture them. There is no renson to disbelieve the prosecution witnesses and they have been rightly relied upon by the learned-Sessions Judge and the appellants therefore, have been rightly convicted. 9. The contention of the learned counsel for the appellant that the miscreants did not come for committing any dacoity of the house of Gopi but came for the refund of amount of Rs. 7,300/- paid by Inder Singh in consideration of a chamar lady the wife of Matu is untenable. The learned Sessions Judge was justified in his finding that the dacoity took place at the house of Gopi in the evening of 12.10.1972. He was also justified in discarding the eversion of the appellants that chamar lady was sold to Indersingh and Bantasingh for Rs. 7,300/- by Gopi PW 13. The learned Sessions Judge was justified in his finding that the dacoity took place at the house of Gopi in the evening of 12.10.1972. He was also justified in discarding the eversion of the appellants that chamar lady was sold to Indersingh and Bantasingh for Rs. 7,300/- by Gopi PW 13. There is no evidence on this point on behalf of the appellants as to raise even reasonable probability, as to the probable existence of such facts. On the other hand, the prosecution has fully established that the miscreants came to the house of Gopi for committing dacoity. The statements of prosecution witnesses need not be discussed in detail, as they have been discussed in detail by the learned Sessions Judge in his judgment. It is clear that the miscreants came to the house of Gopi duly armed and one of them remained at the gate to guard while others entered the Guwari of Gopi and some of them entered into his Kotha and they immediately began to fire in order to create panic Gopi was not present at at that time there. There is no suggestion in the cross-examination of the prosecution witnesses that the miscreants asked the whereabouts of Gopi and informed the prosecution witnessess present there that Gopi had sold one Chamar lady for Rs. 7,300/- and that lady had come back and they have come for the refund of the amount. Some suggestion was, however, made to Gopi in his cross-examination but he has denied on oath such facts. Thus there is no force in the contention of the learned counsel for the appellants on this point. 10. The next contention of the learned counsel for the appellants that the learned Sessions Judge has wrongly believed the identification of the accused by the prosecution witnesses as the appellants were shown to the prosecution witnesses is not tenable. It may be said that the appellants belong to different area rather different province & they are strangers to the prosecution witnesses therefore it can safely be said that there is no enmity between the appellants and the prosecution witnesses so as to falsely implicate them. It may be said that the appellants belong to different area rather different province & they are strangers to the prosecution witnesses therefore it can safely be said that there is no enmity between the appellants and the prosecution witnesses so as to falsely implicate them. As is revealed by the prosecution witnesses who have identified the accused and looking to the circumstances of the incident it can be said that witnesses who were present at the spot, had sufficient opportunity & time to see the miscreants & formed the impression in their minds and on the basis of that they were able to identify the appellants. In the circumstances of the case it is not necessary to expect that the witnesses should have seen some specific marks of identification of the appellants and must have informed the Magistrate as to details of such identification marks and on the basis of such marks they would have been able to identity the appellants; and it was only in the evening that this occurrence took place and it was not dark night by then, so that their identification can be doubted 11. The contention of the learned counsel for the appellants that when the dacoity is committed and guns are fired by the dacoits, people becoms panicy and they cannot be expected to clearly identify the decoits. It may be said that it depends or the circumstances of each case and the courage of individuals. It may be true in some cases that some people may become panic stricken & might try to run away from the scene of of occurrence and many may not be able to identify correctly the miscreants but in the circumstances of the present case the prosecution witnesses who were present on the pot and belonged to Jat community did not feel panic stricken rather they faced dacoits with a courage and even the young ladies belt and injured them fatally so that one of them died at the spot and the other was so badly injured that he could not properly run away and was caught and brought back and died subsequently. In such circumstances this contention hardly holds water that the prosecution witnesses who have identified the appellants could not have identified them. 12. In such circumstances this contention hardly holds water that the prosecution witnesses who have identified the appellants could not have identified them. 12. Another contention of the learned counsel for the appellants in this connection is that the appellants were shown to the witnesses and were not kept Baparda. It may be said that the prosecution witnesses who have identified the appellants have denied the suggestion that the appellants were shown to them before the identification parade. Besides the prosecution have produced Bishambher Dayal PW 5, Gokulchand PW 6, Man Singh PA 7 & Ram Karan PW12 who have stated that the appellants were kept Ba-parca while they remained in custody. 13. The prosecution has examined Shyokori PW 2, Mst. Bhateri PW 3, Mst Geeta PW 4, Man Singh PW 6, Karan Singh PW 8, Subhash, PW 15 and Avtar Singh PW 16 as the eye-witnesses of the occurrence. Out of them Shyokori PW 2, Mst. Bhateri PW 3, Mst. Geeta PW 4 and Subhash PW 15 and Avatr Singh PW 16 have identified all the four accused persons in the court as well as test identification parade conducted by Panna Lal PW 14. Man Singh PW 7 has identified Phool Singh in the court. Karna Singh identified Banwari and Sayan Singh, Roopram PW 9 and Mangeram PW 10 who saw the accused in the way going towards house of Gopi has also identified Hazara Singh and Banwari and Sayan Singh. Hazara Singh has been identified by Shyokori, Mst. Bhateri. Mst. Geeta, Choturam, Subhash and Avtar Singh in the Banwari accused in the identification parade and in the court Sayansingh accused has been identified by Shyokori, Mst. Bhateri Mst. Geeta Subhash and Avtarsingh in the test identification parade as well as in the court. This shows that all four appellants were identified by a number of prosecution witnesses in the test identification parade as well as in the court and there is no doubt that all the witnesses were present at the spot and the learned Sessions Judge has believed the testimony of prosecution witnesses in order to hold that all the appellants had participated in the commission of dacoity. I have also looked into the evidence of the prosecution witnesses and I do not find any reason to differ with the learned Sessions Judge on this score. 14. I have also looked into the evidence of the prosecution witnesses and I do not find any reason to differ with the learned Sessions Judge on this score. 14. Another point that has been contended by the learned counsel for the appellants that the recovery of booty alleged to have been made at the instance of Banwari is not a reliable evidence as the place from where the alleged articles are said to have been recovered is accessible to all and they were of very common pattern and a small value. This contention of the learned counsel for the appellants may have some force but it is not the sole evidence which led the Sessions Judge to hold the appellants as participants in the crime. The learned Sessions Judge was alive of this weak piece of evidence bit beyond this evidence there was sufficient evidence of eye-witnesses to establish that the appellants were participants in the dacoity. In these circumstances this contention that the appellants or one of them i.e. Banwari did not participate in dacoity, has no force. 15. The next contention of the learned counsel for the appellants made out against the appellants does not travel beyond the ambit of section 395 IPC as it has not been established that out of the appellants, who possessed what weapon or who caused the grievous hurt The liability to an enhanced punishment is limited to the offender who actually causes grievous hurt or uses a deadly weapon, and not of the case of persons associated with such offender in the commission of the offence. It does not provide for any joint liability under section 149 or section 34 IPC. 16. It may be said that there are certain contradictions in the statements of the witnesses as to the weapons possessed by the individuals. The learned Sessions Judge has also noted that there are material contradictions in this regard. He was, however, dealing with the point whether the appellants were participants in the dacoity or not and from that point of view he considered that though there were material contradictions but they do not go to disprove the case of the prosecution as to the participation of the appellants in the dacoity. He was, however, dealing with the point whether the appellants were participants in the dacoity or not and from that point of view he considered that though there were material contradictions but they do not go to disprove the case of the prosecution as to the participation of the appellants in the dacoity. It is no doubt true & as has been held above the appellants were participants in the dacoity and therefore they are guilty for the offence under section 395 IPC. The point to be seen is whether all of them are liable for the offence under section 395 IPC read with 397 IPC. As this can be said that liability to an enhanced punishment is limited to the offender who actually causes grievous hurt or used deadly weapon and not to the case of the person associated with such offender in the commission of the dacoity. Section 34 has an application in the construction of Section 395 IPC to determine the substantive offence which it created. Section 34 IPC has no application in the construction of section 397 IPC. 17. It may also be raid that most of the prosecution eye-witnesses have deposed that Banwari had lathi with him. Mst. Bhateri PW 3 had deposed that Banwari had stick with him while some other witnesses have described stick to some other accused. Chhotu Ram P.W. 11 has gone to the extent to have Described sword with Banwari Shyokori P.W. 2 has Described lathi with Banwari. Thus there are contradictions as to what Banwari possessed. Lathi is not a deadly weapon, within the meaning of section 397 IPC. PW 2 Shyokori has also deposed that three dacoits entered the Kotha out of them Hazara Singh had sword with him while two others had lathis with them. According to her the third person, who entered the Kotha, was that dacoit, who was chased, caught and brought back and he was subsequently dead. But according to other witnesses this third person who was chased and brought back and died had a pistol with him and he did not enter the kotha. Thus which two out of the three dacoits had lathis with them is not clearly established and creates doubt that Hazara Singh had sword with him. But according to other witnesses this third person who was chased and brought back and died had a pistol with him and he did not enter the kotha. Thus which two out of the three dacoits had lathis with them is not clearly established and creates doubt that Hazara Singh had sword with him. From the evidence it is clear that the dacoit, who was guarding at the gate, had a gun with him and he was injured and died at the spot. The other accused who tried to run away but was chased, brought back and subsequently died had pistol with him. According to Mst. Bhateri PW 3 Hazara Singh and Banwari entered the Kotha and if it was so, according to Shyokori two accused who entered the Kotha had lathis. It is doubtful whether Hazarasingh had sword with him. As regards Sayansingh, Shyokori and Avtarsingh have deposed that he had sword with him while Chhotu PW 11 has deposed that Sayan Singh had a Danda with him. According to Shyokori Banwari had Lathi while according to Mst. Bhateri he had stick and according to Chhotu PW 11 Banwari had sword with him. Thus there is a material contradiction on this point. As regards Phool singh the eye-witnesses have, however, deposed that he had a gun with him. It is also stated that he fired at Man Singh and Man Singh in any identification parade. For this the reasons seem to be that this witness in his statement before police expressed his inability to identify the dacoits as he was not able to see them properly at that time of occurrence. He has however, identified Phool singh in the court as the person who fired gun at him but in view of his statement in the police that he was unable to identify the accused he was not taken as witness in the identification parade by the police. This identification of Phoolsingh in the court, cannot be much reliable. Thus looking to the various contradictions the liability of an enhanced punishment under section 397 IPC cannot be fastened on the appellants and the benefit of such indefinite evidence from the side of the prosecution should go to the appellants. The appellants, therefore, are guilty for offence under section 395 IPC only. Thus looking to the various contradictions the liability of an enhanced punishment under section 397 IPC cannot be fastened on the appellants and the benefit of such indefinite evidence from the side of the prosecution should go to the appellants. The appellants, therefore, are guilty for offence under section 395 IPC only. The learned counsel for the appellants in view of these circumstances and in view of the facts that two companions of the appellants were killed in the incident, the appellants deserve leniency in the matter of sentence. Looking to the facts and circumstances of the case, I feel that five years rigorous imprisonment to the appellants would meet the ends of justice. 18. The result is that the appeals are partly allowed. The conviction of the appellants under section 395 read with section 397 IPC is altered to Section 395 IPC and the sentences for seven years rigorous imprisonment to each of the appellants is reduced to five years rigorous imprisonment. The period of their detention in custody during investigation, inquiry or trial shall be set off against the term of their punishment in view of section 428 Cr.P.C.Appeal partly allowed. *******