JUDGMENT 1. 1. These appeals and the connected revision arise out of the judgment of the Additional Sessions Judge, Tonk, dated 17-3-1972 and therefore, they are disposed of by this common judgment. 2. D. B. Criminal Appeal No. 537 of 1972 has been preferred by the State Government against the acquittal of the accused Keshar Singh of ah offence under section 302 of the Indian Penal Code (hereinafter to be referred to be as "the Code") for having committed the murder of one Sheoji, and that of the accused Pyara Singh of offences under sections 395, 396, 397 and 398 of the Code. 3. D. B. Criminal Revision No. 409 of 1972 has been filed by the State Government for enhancement of the sentences passed on the accused Budh Singh, Bachan Singh, Keshar Singh and Pritam Singh under sections 395, 396,397 and 398 of the Code. 4. S. B. Criminal Appeal No. 379 of 1972, Criminal Appeals No. 464 and 486 of 1972, and S. B. Jail Appeal No. 485 of 1972 are by the appellants-accused Budh Singh, Pritam Singh, Bachan Singh and Keshar Singh against their conviction and sentences under sections 395, 396, 397 and 398 of the Code. 5. Accused Budh Singh, Pritam Singh, Bachan Singh and Keshar Singh have been convicted of offences punishable under sections 395, 396, 397 and 398 of the Code and have been sentenced as under:- Budh Singh U/ss 395 and 396 of the Code. 7 years' rigorous imprisonment and a fine of Rs. 100/- Bachan Singh U/ss 397 and 398 of the Code. 7 years' rigorous imprisonment. Pritam Singh, Bachan Singh Keshar Singh. } U/ss 395, and 396, 397 and 398 of the Code. 7 years' rigorous imprisonment. 6. The case of the prosecution, in brief, is as follows : On the night of 19-11-1966, at 7 and 8 p. m., there was a daring armed dacoity committed by a gang of six dacoits armed with guns at the Haveli of Mahajan Narain Lal, a wealthy merchant and money-lender of village Lamba Kalan. The first information report Ex. P. 1 was lodged at 10-30 p.m. i. e., immediately' after the commission of the dacoity, by P.W. 1 Champalal son of Ramswaroop . P. W. 44 and nephew of Narain Lal P. W. 63. It was alleged that the dacoits came armed with guns with their faces muffled. The first information report Ex. P. 1 was lodged at 10-30 p.m. i. e., immediately' after the commission of the dacoity, by P.W. 1 Champalal son of Ramswaroop . P. W. 44 and nephew of Narain Lal P. W. 63. It was alleged that the dacoits came armed with guns with their faces muffled. They were challenged by Ram Swaroop P. W. 44, father of Champalal and his uncle Narain Lal P. W. 63. Despite their resistance, the dacoits effected their entry into the Haveli and looted at the point of gnu, large amount of cash, several gold and silver ornaments worth Rs. 25,000/- to 30,000/-. 7. On the arrival of the dacoits, Champalal P. W. 1 rushed to the village and raised an alarm. On hearing his alarm, the villagers in large numbers came to the help of Mahajan Narain Lal and surrounded the Haveli. Out of the six dacoits, two of them had taken their position on the roof armed with their guns. When the villagers started pelting stones at the dacoits, one of the two dacoits standing on the roof, flashed a torch and the other fired his gun towards the villagers. The deceased Sheojidas alias Sheoji, uncle of Champalal P. W. 1, was struck with bullets on his right thigh and hips, resulting in profused bleeding, The dacoits scared away the villagers by opening fire, as a result of which the villagers took refuse in their houses, after which the dacoits looted away the property and made good their escape. 8. The deceased Sheojidas alias Sheoji was carried in an injured condition to a nearby shop where he died shortly afterwards due to shock and haemorrhage. 9. Gopal Lal Sharma, S. H. O., Todaraisingh, P. W. 68, reached the village Lamba Kalan along with Dr. D. N. Sinha, P. W. 48, but nothing could be done to save the life of the deceased. On their arrival, they found that the deceased Sheojidas had already died of his injuries. Dr. D. N. Sinha, P. W. 48, performed an autopsy on the dead body of Sheojidas and found 2 bullet injuries, one on the right thigh and the other on the right hip. In his opinion, the death of Sheojidas was caused by shock and haemorrhage due to bullet injuries. 10. Dr. D. N. Sinha, P. W. 48, performed an autopsy on the dead body of Sheojidas and found 2 bullet injuries, one on the right thigh and the other on the right hip. In his opinion, the death of Sheojidas was caused by shock and haemorrhage due to bullet injuries. 10. During the investigation, the accused Budh Singh was arrested on 25-11-1966 i. e., within 7 days of the occurrence. He volunteered to make a discovery of a part of the looted property from the field of his adopted son Mukhtiar Singh in village Nanakpura. Badri Prasad, Inspector of Police P.W. 66, recorded the statement Ex. P. 3 on 9-8-1967, leading to the discovery of certain silver ornaments which were seized under seizure memo Ex. P.4. A substantial portion of the looted property was recovered at the instance of, and on information furnished by the accused which has been stolen property. 11. In the course of interrogation, the accused Budh Singh obviously divulged the identity of the other miscreants. From the information given by him, it transpired that accused Bachan Singh of Ludhiana and accused Keshar Singh of Patiala were involved in the commission of the dacoity. He also divulged that accused Pritam Singh and Pyara Singh participated in the commission of the offence. Accused Pyara Singh was arrested on 25-11-1966 and accused Pritam Singh on 18-12-1966. There after, in the early part of April 1967, Ram Lal, Head Constable P. W. 65, took Champalal P. W. 1 and his uncle Narainlal P. W. 63, to Ludhiana where they stayed at a Dharamshala. On 15-4-1967, on being painted out by Champalal P. W. 1. accused Bachan Singh and Keshar Singh were taken into custody while they were sitting along with 10/15 others in the court precincts at Ludhiana, and brought to Tonk. 12. There were two identification parades held. First of them was held by Shri Satish Chandra Sharma, P. W. 69, at the Central Jail, Jaipur, on 2-1-1967, where the accused Budh Singh was identified by Champalal P.W. 1, Kalyan P. W. 2, Surajmal P.W. 3 and Narainlal P,W. 63. The second identification parade was held by Shri V. D. Sharma, P. W. 64, Sub-Divisional Magistrate, Malpura, at the sub-jail, Malpura where the accused Pritam Singh was identified by Champalal P. W.l, Kalyan P. W. 2, Surajmal P. W. 3 and Narainlal P. W. 63. 13. The second identification parade was held by Shri V. D. Sharma, P. W. 64, Sub-Divisional Magistrate, Malpura, at the sub-jail, Malpura where the accused Pritam Singh was identified by Champalal P. W.l, Kalyan P. W. 2, Surajmal P. W. 3 and Narainlal P. W. 63. 13. The accused-appellants abjured their guilt and has denied the commission ' of the alleged offences. They denied their participation at the dacoity committed at the Haveli of Mahajan Narainlal, on the night in question. 14. In his ably written judgment, the learned Additional Sessions Judge has carefully marshalled the entire evidence and found that the prosecution has established the guilt of the accused Budh Singh, Pritam Singh, Bachan Singh and Keshar Sidgh beyond all reasonable doubt, and convicted and sentenced them for having committed offences under sections 395, 396 and 398 I.P.C. as stated above. He has, however, acquitted the accused Keshar Singh of the charge under section 302 I.P.C. giving him the benefit of doubt and the accused Pyara Singh of all the offences with which he was charged. 15. We are informed that the appellants Budh Singh, Pritam Singh, Bachan Singh, Keshar Singh have already served out their sentences and have since been released. Now, one of the questions for determination is whether should the sentences passed on the appellants in the circumstances, be enhanced. 16. The conviction of the appellants Budh Singh, Pritam Singh, Bachan Singh and Keshar Singh by the learned Additional Sessions Judge under sections 395 396, 397 and 398 of the I.P.C. unassailed. Their participation at the armed dacoity committed at the Haveli of Mahajan Narainlal stands amply proved by the consistent, unimpeachable and reliable testimony of Champal P.W. 1, Kalyan P.W. 2, Surajmal P.W. 3, Sukhdeva P.W. 4, Ram Karan P.W. 5, Jagdish P.W.7, Jagdish P.W. 15, Ram Swaroop P.W. 44, and Narainlal P. W. 63. They are all natural witnesses: and there is no reason for us to disbelieve their evidence. 17. Shri Gupta, learned counsel appearing as amicus curiae, however, made an valiant effort to impeach the credibility of these witnesses and persuaded us to take a different stand than the one taken by the learned Additional Sessions Judge. But we are afraid no other view is possible The conviction of the appellants Budh Singh, Pritam Singh, Bachan Singh, and Keshar Singh under sections 395, 396, 397 and 398 I.P.C. is accordingly confirmed. 18. But we are afraid no other view is possible The conviction of the appellants Budh Singh, Pritam Singh, Bachan Singh, and Keshar Singh under sections 395, 396, 397 and 398 I.P.C. is accordingly confirmed. 18. That takes us to the question as to whether the order of acquittal of the accused Keshar Singh under section 302 I.P.C. should be interfered with. Now, the testimony of the eye witnesses disclose that all the six decoits, who were armed with guns, effected an entry into the Haveli of Mahajan Narainlal. AH these witnesses were standing outside the Haveli. Though the prosecution has examined some of the inmates of the Haveli, viz., Mst. Gaura P. W. 6, Mst. Kamala P. W. 23, Mst. Manphool P. W. 19, Mst. Prem P. W. 20, Mst. Santara P. W. 21, i. e., other female members of the family of Mahajan Narainlal who were present in the Haveli they were so much terror-stricken by the dacoits armed with guns, who went on ransacking the Haveli for 11/2 hours, that they were not able to identify as to who fired the fatal shot. 19. We are, therefore, left with the testimony of Champalal P.W.L, Kalyan P. W. 2, Surajmal P. W. 3, Sukhdeva P. W. 4, Ram Karan P. W. 5, Jagdish P. W. 7, Jagdish P. W. 15, Ramswaroop P. W. 44 and Narainlal P. W. 63, i. e., the other eye-witnesses, who were standing outside the Haveli. Tbeir version is that two of the dacoits, one of whom was the accused Keshar Singh, had climbed on the roof and taken their position armed with their guns. One of the two dacoits flashed a torch and the other fired his gun when the villagers assembled near the Haveli started pelting stones. It is riot clear from the testimony of these witnesses as to the identity of the person who fired the fatal shot. In the circumstances, the learned Additional Sessions Judge had no other alternative but to give to the accused Keshar Singh the benefit of doubt. 20. In up holding the acquittal of the accused Keshar Singh, the learned Additional Judge has, however, expressed chat though the prosecution has. In the circumstances, the learned Additional Sessions Judge had no other alternative but to give to the accused Keshar Singh the benefit of doubt. 20. In up holding the acquittal of the accused Keshar Singh, the learned Additional Judge has, however, expressed chat though the prosecution has. proved hat a murder was committed in the commission of the dacoity, but the four accused having been sentenced under section 395 I.P.C., no separate sentence could be passed against the accused Keshar Singh under section 302 I.P.C. We refrain from going into the question because the charge under section 302 I.P.C. against the accused Keshar Singh has not been established. 21. So far as the appeal against the acquittal of the accused Pyara Singh is concerned, the learned Additional Sessions Judge has given cogent reasons for holding that the prosecution has failed to establish his guilt under sections 395, 396, 397 and 398 I.P.C. beyond ail reasonable doubt. That is a finding based on appreciation of evidence. Merely because this Court might, on a re-appraisal of the evidence, come to a different conclusion, that hardly affords a sufficient ground for interference with his order of acquittal. That apart, there is no evidence of identification or of recovery of stolen property against the accused Pyara Singh. His order of acquittal must, therefore, stand. 22. As to the sentences, there is no doubt, in our mind that in the facts and circumstances of the present case, the sentence of' rigorous imprisonment for 7 years imposed on the appellants by the learned Additional Sessions Judge for an offence under section 396 I.P.C., is wholly inadequate. The proper sentence in a case like this where the accused were armed with guns, but there was no evidence as to the identity of the person who fired the fatal shot, should have been one of imprisonment for life. It is necessary to view dacoities in which fire arms are used, with seriousness. 23. Upon a conviction under section 396 I.P.C., it is not a general rule that a sentence of death should necessarily follow. This section differs from section 302 in this respect that, prior to the amendment of section 367 of the Code of Criminal Procedure, 1898, whereas under section 302, the rale was that a sentence of death should follow unless reasons were shown for giving a lesser sentence, no such rule applied to this section. This section differs from section 302 in this respect that, prior to the amendment of section 367 of the Code of Criminal Procedure, 1898, whereas under section 302, the rale was that a sentence of death should follow unless reasons were shown for giving a lesser sentence, no such rule applied to this section. The obligation in the matter of imposing the sentences is in the same sequence both in sections 302 and 396 only that in the latter case the scope of discretion is larger in so far as there is the possibility of imposing a sentence lesser than death or imprisonment for life for an offence punishable under section 396 Ratanlal's Law of Crimes, 21st edition, p. 1041. 24. Normally, the learned Additional Sessions Judge should have sentenced the appellants to imprisonment for life, but having regard to the circumstance that they have already served out their sentences, and thereafter must have rehabilitated in life, we think that it would neither be proper nor in the interest of justice, to direct an enhancement of the sentence. 25. The result, therefore, is that all the appeals and the revision fail and are dismissed. The judgment of the Additional Sessions Judge convicting the appellants under section 395, 396, 397 and 398 I.P.C. is accordingly upheld though, for reasons already stated, we strongly deprecate the sentences passed by him. *******