JUDGMENT 1. - These two appeals one represented appeal filed by Ramjilal and Rambharosi registered as S.B. Criminal Appeal No. 642 of 1974 and the other filed by Gulla through jail registered as S.B. Criminal Jail Appeal No. 675 of 1974 are directed against the same judgment dated September 26, 1974 of the learned Additional Sessions Judge, Gangapur City. As such both of them are being disposed of by a common judgment. 2. The learned Additional Sessions Judge convicted Ramjilal, Rambharosi and Gulla under Section 395/397 I.P.C. and sentenced each of them to undergo seven years rigorous imprisonment. However, they were acquitted of all other charges framed against them. The other accused Atar -Singh tried along with the above named three appellants was acquitted of all the charges framed against him by the same judgment. 3. The prosecution story as disclosed at the trial is that a dacoity took place in village Ramnagar on the intervening night of 9th and 10th October, 1973 at 10.30 p.m. During the course of that dacoity PW 5 Jinsi, PW 9 Ratan, PW 10 Ram Charan and PW 11 Ghisiya were injured. Their injury reports are Ex, P 7, Ex. P 12, Ex. P 9 and Ex. P 10 respectively. The houses of PW 1 Mangal, PW 3 Mst. Govindi, PW 4 Nathuwa and PW 14 Mst. Phabuli were ransacked and the accused decamped with the property. The information of this occurrence was lodged at the Police Station Keladevi by PW 4 Nathuwa on the same night at 11.45 p.m. which has been marked as Ex. P/3. The distance between the place of occurrence and the Police Station is three miles. During the course of investigation the three appellants Ramjilal, Rambharosi and Gulla were arrested by PW 18 Jai Singh on November 8, 1973. At the time of the arrest the accused-appellant Rambharosi was having a bag containing silver ornaments, which was seized vide memo Ex. P/1. The articles seized from Rambharosi are Kada Art. 1, pair of Clips Art. 2, pair of Bichuas Art. 3, Kondhni Art. 4. A silver Hansli Art. 5 was recovered from Gulla. The recovery memo is Ex. P 2. Test identification parade for identification of the accused by the victims of the dacoity was arranged on November 23, 1973 under the supervision of Munsif Magistrate, Karauli PW 12 S. N. P. Dave. The identification memos are Ex. A silver Hansli Art. 5 was recovered from Gulla. The recovery memo is Ex. P 2. Test identification parade for identification of the accused by the victims of the dacoity was arranged on November 23, 1973 under the supervision of Munsif Magistrate, Karauli PW 12 S. N. P. Dave. The identification memos are Ex. P/15 and Ex. P/16. In this test identification parade accused-appellant Rambharosi was identified by PW 1 Mangal, PW4 Nathua, PW 5 Jinsi and PW 10 Ramcharan, whereas the other accused appellant Ramjilal was identified by PW 1 Mangal and PW 4 Nathuwa. A second test identification parade for identification of the same accused was held on Novembet 26, 1973 under the supervision of the same Magistrate and in this identification parade both the accused-appellants Rambharosi and Ramjilal were identified by PW 8 Syed Ghulam Yasdani and PW 9 Ratan. On February 27, 1974 accused-appellant Gulla was put up for identification in the test identification parade which was held under the supervision of the same Magistrate PW 16 S. N. P. Dave. In this test identification he was identified by PW 1 Mangal, PW 4 Nathuwa, PW 9 Ratan and PW 10 Ramcharan. The identification memo is Ex. P/18. The articles seized from the possession of accused Rambharosi and Gulla were put up for test identification on November 23, 1973, PW 1 Mangal and his wife PW 14 Mst. Phabuli identified Art. 1 Kada, Art. 2 pair of clips, Art. 3 pair of Bichhuwa and stated that these were the very articles which were taken away by the miscreants during the course of dacoity. Art. 5 Kansli alleged to have been recovered from the possession of accused Gulla was identified by PW 3 Mst. Govindi and PW 4 Nathuwa as their own. They further stated that this was the same Hansii which was taken away by the miscreants during the course of the dacoity. The police after usual investigation submitted a challan against four accused persons in the Court of Munsif Magistrate, Karauli. The learned Magistrate after taking proceedings under Section 207 A Cr.P.C. committed the accused to the Court of Sessions to take their trial. 4. The accused pleaded not guilty to the charge and the prosecution examined 19 witnesses in support of their case, out of whom 8 witnesses namely, PW 1 Mangal, PW 3 Mst. The learned Magistrate after taking proceedings under Section 207 A Cr.P.C. committed the accused to the Court of Sessions to take their trial. 4. The accused pleaded not guilty to the charge and the prosecution examined 19 witnesses in support of their case, out of whom 8 witnesses namely, PW 1 Mangal, PW 3 Mst. Govindi, PW 4 Nathuwa, PW 5 Jinsi, PW 9 Ratan, PW 10 Ram Charan, PW 11 Ghisiya and PW 14 Mst. Phabuli were examined as eye witnesses of the occurrence. PW 7 Dr. P. C. Sharma is the person who clinically examined the above named four injured persons. PW 12 is the Munsif Magistrate Shri S. N. P. Dave under whose supervision the test identification parades for identification of the accused as well as the articles of dacoity were held, PW 19 Bhagwati Prasad is the Investigating Officer, PW 8 Syed Ghulam Yasdani was produced to prove that he had seen the accused on the intervening night of 9th and 10th October, 1973 just near the place of occurrence. 5. The accused denied their complicity in the crime, Ramjilal further stated that, he was Pradhan of the Panchayat Samiti, as he had filed an election petition against Ganpat Singh sitting Pradhan of the Gram Sabha of village Bhara, a false case was foisted against him. The accused did not examine any witness in defence but produced,Ex. D/1 to Ex. D/15 in support of their case. 6. The learned Sessions Judge placing reliance on the statements of the eye witnesses PW 1 Mangal, PW 4 Nathuwa, PW 3 Syed Ghulam Yasdani, PW9 Ratan supported by the Test identification memos Ex. P/14, Ex. P/15 and Ex. P/16 as well as the fact that the accused Ramjilal was arrested in the jungle in the company of other accused held him guilty of the offence punishable under Section 395 read with Section 397 i.P.C. and sentenced him as mentioned above. As regards the other accused namely, Rambharosi and Gulla, the Seamed Judge held that the statements of the eye witnesses stood corroborated by the test identification parade as well as by the recovery of the looted articles from their possession. Both of them were convicted and sentenced as mentioned above. 7. Being aggrieved of the conviction and sentence, the accused-appellants have come up in appeal to this Court. 8. The learned counsel Mr. Tibrewal assisted by Mr. Both of them were convicted and sentenced as mentioned above. 7. Being aggrieved of the conviction and sentence, the accused-appellants have come up in appeal to this Court. 8. The learned counsel Mr. Tibrewal assisted by Mr. A.K. Gupta has strenuously assailed the judgment of the trial court on a number of grounds which will be dealt with ad-seriatum. The learned Public Prosecutor appearing on behalf of the State has supported the judgments of the trial Court. 9. From the statements of PW 4 Nathuwa, PW 5 Jinsi, PW 9 Ratan and other witnesses examined in the case it has been sufficiently proved that a dacoity took place in village Ramnagar on the intervening night of 9th and 10th October, 1973 and this fact has not been rightly contested by the learned counsel appearing on behalf of the accused appellant. 10. It is the common case of the parties that the cases against accused Ramjilal rests upon the reliability of the evidence of identification by the eye witness of the occurrence and there is no other evidence to connect the accused-appellant Ramjilal with the crime, where as the case against the accused-appellants Rambharosi and Gulla rests upon the evidence of identification as well as recovery of the articles alleged to have been taken away by the miscreants during the course of dacoity. 11. The learned counsel for the accused-appellants contended, a perusal of the first information report shows that no description of the dacoits have been mentioned therein. It has also not been mentioned therein that the witnesses would be in a position to identity the accused as and when shown to them. The learned counsel for the appellants placing reliance on the above infirmities in the prosecution case urged that in the absence of above averments in the first information report simply picking of the accused by the witnesses during the course of test identification and in the court cannot be held to be sufficient to convict the accused Ramjilal specially when all the three eye witnesses PW 1 Mangal, PW 4 Naihuwa and PW 9 Ratan have admitted during the course of cross examination that the accused were shown to them during investigation and as such the identification of these accused by the above mentioned witnesses during the course of identification parade cannot be of any avail. Learned counsel appearing on behalf of the State refuted the above arguments on the ground that at the time of arrest a warning was given to the accused-appellants that they will be put up for test identification and as such they should keep themselves concealed and in support of this contention he has placed reliance on the statement of PW 10 Bhagwati Prasad. He further urged that as the accused were already warned to keep themselves concealed, the question of their being seen by the eye witnesses prior to the test identification parade does not arise. 12. The law regarding identification of accused and property stands well settled and it can be safely enumerated as under:- In a criminal case holding of test identification parade serves two fold object firstly it is meant to satisfy the investigating authorities before sending up the case for trial to court that the person arrested, but not previously known to the witnesses, was one of those who committed the crime or the property concerned was the subject of such crime. Secondly it is to satisfy the Court that the accused was the real offender or the articles produced were concerned with the crime, which was under trial. Identification proceedings, therefore, are as much in the interest of the prosecution as in the interest of the accused. When a witness points to a stranger in Court that be was the offender and claims an article and affirms that it was his property which has been stolen, there is no guarantee necessarily of the truth of his assertion and corroborative factors should be looked into to see if the evidence of the witness is reliable. Consequently in order to have some assurance of the truth a test identification is held. The witness at an earlier stage is confronted with the alleged offender not standing alone but mixed up with a number of innocent persons with almost similar age an features or suspected article is mixed up with a number of articles which resemble it, that is to say, it is to give credence to the evidence of a witness who has not known the accused from before or who has not seen the article subsequent to the commission of the offence that a test identification is held. With all this precaution, however the court should never loose sight of the fact that the main evidence is the deposition in the court, 13. Mere assertion of an accused unsupported by any cogent material that he they had been shown to the witnesses prior to the test identification parade cannot be termed to be of much importance, but it is always open to an accused to bring out facts in cross-examination of the witnesses, which may lead to the inference that the witnesses had already an opportunity of seeing the accused^ and, therefore, no reliance should be placed upon their test identification parade. Normally it is expected of the police that before the accused are subjected to a test identification parade it will take every precaution to see that the witnesses had not already see the accused, but if an over zealous investigating officer takes into his hand to shot the accused to the witnesses or fails to take necessary precaution then the court cannot ignore it and if on such account the case fails, the prosecution should thank itself. 14. Informing myself with the above proposition of law, I now proceed to evaluate the evidence examined in this case. PW 9 Ratan under cross-examination admitted that he received information from the police that the accused of dacoity were arrested and as such he went at the Police Station, Keladevi. The witness further goes on to state that at the time when he reached the Police Station the accused were sitting the window. He saw them sitting there, identified them and told to the S. H. O. that these were the very accused who had committed dacoity at his place. He further stated that he told all these facts to his brother and asked him to go to the Police. 15. Station, Keladevi and see the accused and thereafter his brother Mangal went to see the accused at the Police Station. 16. PW 1 Mangal also admitted during the course of cross-examination that after the arrest of the accused he went to the Police Station where his statement was recorded and at that, time all the three accused-appellants were sitting in the Thana. The witness tried to improve his statement and then said that he had seen those accused at the Police Station after he had identified them during the course of identification parade. The witness tried to improve his statement and then said that he had seen those accused at the Police Station after he had identified them during the course of identification parade. The learned counsel for the accused-appellants is correct in urging that this later portion of his statement be relied upon, because there was no reason for the witness to go to the Police Station for identifying the accused after he had already identified them during the test identification parade, and this subsequent improvement has been made by the witness purposely in order to nullify the admission, which he has made in earlier part of the same statement. To the same effect is the statement of PW 4 Nathuwa. Thus all the these eye witnesses on whose testimony the conviction of the accused-appellants is based have admitted that the accused-appellants were shown to them prior to the holding of the test identification, a bare denial on the part of the investigating officer that the accused were not shown to the witnesses cannot improve the cause of the prosecution. 17. The learned Additional Sessions Judge observed that though the Prosecution witnesses admitted that they had seen the accused-persons in the thana or at Jagner prior to the test identification parade, yet that statement was not reliable, because the accused persons were asked to be baparda throughout. This is a mere surmise on the part of the learned Additional Sessions Judge. He has rather given the benefit of doubt to the prosecution, which is not permissible under the law of the land. It cannot be said beyond reasonable doubt that the accused persons were not shown to the witnesses prior to the holding of the test identification parade and as such in my opinion, test identification as well as the identification in court loesses its evidentiary value. There is nothing unnatural in the anxiety of the victims of the dacoity to rush to the Police Station for seeing them. The chances of false implication of Ramjilal cannot be ruled out, because sometimes suspicion often amounts to a moral conviction in a person labouring under a grievance which is always required to be ruled out. There is nothing unnatural in the anxiety of the victims of the dacoity to rush to the Police Station for seeing them. The chances of false implication of Ramjilal cannot be ruled out, because sometimes suspicion often amounts to a moral conviction in a person labouring under a grievance which is always required to be ruled out. No doubt the test identification was properly conducted, but the danger of accepting the evidence of identification held in the court and during the course of the test identification parade lies not in any flaw in the identification parade but in the fact that the accused were shown to the identifying witnesses by the police prior to the holding of the test identification parade. The identification of accused-appellant Ramjilal by PW 8 Syed Ghulam Yasdani during the test parade as well as in the court is not sufficient to bring home the guilt to the accused, because he is not a witness of the occurrence. He had only seen the accused going towards the scene of occurrence sometime prior to the event. This evidence in itself, even if relied, is not sufficient to convict the accused-appellants under Section 395/397 I.P.C. or any other offence. 18. The accused Rambharosi and Gulla were identified during the course of the test identification as well as in the court as the miscreants of the dacoity by PW 5 Jiansi and PW 10 Ramcharan, besides their identification by PW 1 Nangal, PW 4 Nathua and PW 9 Ratan. The learned counsel for the accused agrees that there is nothing on record to hold that these two accused were shown to PW 5 Jinsi and PW 10 Ram Charan. His contention is that these two witnesses have not given the description of the accused-appellants Rambharosi and Gulla during the course of investigation in their police statements, neither at the time of test identification parade nor at the time of their identification in the court. These two witnesses, namely PW 5 Jinsi and PW 10 Ram Charan have not assigned any specific part to either of these two accused. These two witnesses, namely PW 5 Jinsi and PW 10 Ram Charan have not assigned any specific part to either of these two accused. Besides that, they made similar statements regarding Atar Singh and the learned Judge of the trial court did not consider their statements to be sufficient for convicting accused Atar Singh and as such simply on the statements of these two witnesses their presence on the scene of the occurrence at the time of the dacoity cannot be held to be sufficiently proved. The learned counsel for the State has urged that the statements of these two witnesses have been corroborated in material particulars. The recovery of the articles alleged to have been taken away during the course of dacoity from the possession of accused Rambharosi and Gulla conjointly read with the evidence of identification in court and during parade is sufficient to warrant the conviction of these two accused-appellants under Section 395 I.P.C. 19. No doubt the description of the accused have not been mentioned m the first information report, but the dacoity went on for a long time and there was adequate light and opportunity for the witnesses to note the physical features of the accused and as there there is nothing to hold that these two accused appellants were shown to PW 5 Jinsi and PW 10 Ramcharan prior to the holding of the test identification parade, there is nothing to hold that these two accused were shown to PW 5 Jinsi or PW 10 Ramcharan or these two witnesses had the opportunity of seeing them prior to the test identification. Apart from the evidence of identification the articles recovered from their possession have been identified as those which are alleged to have been taken away during the course of the dacoity. The recovery of the looted property from the possession of those two accused is sufficient corroboration of the evidence of identification regarding them. As such I do not find any cogent reason to reverse the findings of the trial court to the effect that they committed dacoity. 20. The evidence in the case is that the dacoits were armed with lathis, axes and pistol. It has also been proved that that PW 5 Jinsi and PW 10 Ramcharan sustained injuries during the course of the commission of dacoity. 20. The evidence in the case is that the dacoits were armed with lathis, axes and pistol. It has also been proved that that PW 5 Jinsi and PW 10 Ramcharan sustained injuries during the course of the commission of dacoity. But some of the witnesses have specified the nature of the weapon in hand of a particular accused. Vague and general statement that accused were armed with axes, pistol and lathis cannot be held sufficient to fasten the guilt on the head of any accused under Section 397 I.P.C. The liability to an enhanced punishment is limited to the offender who actually causes grievous hurt or uses deadly weapon and to the case of persons associated with such offender in the commission of the offence. The words 'offender' and 'such offender' appearing in Section 397 I.P.C. refer only to the persons who are proved to have actually used deadly weapons and not to the others who in combination with such persons have committed robbery or dacoity. Unless the nature of lathi is known, a lathi cannot be termed to be a deadly weapon within the meaning of this section. Unless it is known as to which of the accused was armed with the pistol and which was armed with a lathi or who caused injury to the victim, none of them can be held guilty under Section 397 I.P.C. 21. The net result of the above discussion is that the appeal is partly allowed. The conviction of the accused-appellant Ramjilal under Section 395/397 I.P.C. and the sentence awarded to him by the trial court is set aside. He is acquitted of all the charges framed against him. 22. The conviction of the accused-appellants Rambharosi and Gulla under Section 397 I.P.C. is set aside. The conviction of both these accused under Section 395 I.P.C. is maintained. The sentence of seven years' rigorous imprisonment awarded to them by the trial court is reduced to four and a half years' rigorous imprisonment and a fine of Rs. 200/- each in default of payment of which each of them shall further undergo rigorous imprisonment for a period of one month. 23. The sentence of seven years' rigorous imprisonment awarded to them by the trial court is reduced to four and a half years' rigorous imprisonment and a fine of Rs. 200/- each in default of payment of which each of them shall further undergo rigorous imprisonment for a period of one month. 23. It is, however, made clear that the accused-appellants Rambharosi and Gulla shall be entitled to the benefit of Section 428 Cr.P.C. and the period of detention undergone by them during investigation, inquiry or trial prior to the date of conviction shall be set off against the term of imprisonment awarded by this Court. 24. The accused Ramjilal is in jail, he shall be released forthwith, if not required in any other case. *******