JUDGMENT 1. - These appeals arise out of the judgment of the Additional Sessions Judge, Dholpur, dated 5-6-1972 and they are disposed of by this common judgment. 2. The five appellants, namely Vijay Ram, Raghubir Singh, Kedar, Ramji and Babu have been convicted by the learned Additional Sessions Judge under section 302 read with section 149 of the Indian Penal Code (hereinafter to be referred to as "the Code")for having committed the murder of one Inderjeet Chamar in furtherance of the common object of the unlawful assembly and they have been sentenced to undergo imprisonment for life. They have further been convicted under section 365 of the Code and sentenced to under go rigorous imprisonment for 5 years each, as also under section 147 of the Code and sentenced to undergo rigorous imprisonment for 1 year. All the sentences are to run concurrently. 3. The case of the prosecution, in brief, is as follows. On the night of date August 6, 1971 at about 8 a.m., the notorious dacoit Phula along with his 8 or 9 companions came to the village Sayapur, armed with guns, Pharsis and Lathis and abducted Omi PW 2, Ram Swaroop PW 4, and Dewan Singh PW 5, from their horses. When the villagers came to their rescue, the dacoit Phula opened fire, as a result of which, the deceased Inderjeet Chamar was shot dead at the spot. The dacoits carried away their captive towards village Kheria, some 2 miles away. There, they released Omi PW 2 and asked him to come to village Holapur with a ransom of Rs. 50,000/- for the release of his brother Ram Swaroop PW 4, and Rs. 40,000/- for the release of his uncle Dewan Singh PW 5. While the dacoits were passing through village Aam-ka-pura, they also abducted Darab Singh PW 7. The dacoit took their captives to the ravine of village Holapur and detained them for 10 to 15 days, & thereafter, when the ransom was not forthcoming, released them, as the Rajasthan Police was putting pressure on their (dacoits) relations and other members of their families. 4. The first information report of this occurrence, Ex. The dacoit took their captives to the ravine of village Holapur and detained them for 10 to 15 days, & thereafter, when the ransom was not forthcoming, released them, as the Rajasthan Police was putting pressure on their (dacoits) relations and other members of their families. 4. The first information report of this occurrence, Ex. P.2, was lodged by Omi PW 1 at the Police Station, Mania on 7.3 1971 at 4 a.m. i.e., in the early hours of the next morning, mentioning that his brother Ram Swaroop P.W. 4 and his uncle Dewan Singh PW 5 had been abducted by the gang of Phula dacoit. 5. The first information report of the other occurrence Ex. P. 1 was lodged by Charan Singh PW 2 at the Police Station, Rajikhera, on 7-3-1971 at 1.30 p.m. stating that the gang of Phula dacoit abducted his son Darab Singh PW 7, and there was a demand for ransom. 6. After the appellants were apprehended, there were three identification parades held. The first was held by Shri Prabhati Lal, Magistrate, 1st Class, Dholpur PW 3, vide identification memo Ex. P. 7. The second was held on the same day by Shri V.D. Hiraway, Naib Tehsidar, PW 14 at Sub Jail, Morena, vide identification memo Ex. P. 11; and the third was held by Shri Prabhati Lal, Magistrate, 1st Class, Dholpur PW 8 on 15.7.71 at Sub Jail, Dholpur, vide memo Ex. P. 8. There can be no denial nor is it disputed that the deceased Inderjeet met with a homicidal death. The post-mortem of the dead body of deceased Inderjeet was performed by Dr. M.L. Maru, P.W. 1, who found a gun shot wound in embilical region of the abdomen. In his opinion, the cause of death was due to haemorrhage and shock as a result of the gun-shot injuries on a vital part of the body. 7. The appellants adjured their guilt and denied the commission of the alleged offences. Their defence was one of complete denial. The accused Babu, however, pleaded that he was not a member of the gang of Phula dacoit, but indeed, was a victim, who had himself been abducted by the gang and was made to accompany it from place to place as he could not arrange for payment of the ransom of money of Rs. 10,000/- demanded of him. The accused Babu, however, pleaded that he was not a member of the gang of Phula dacoit, but indeed, was a victim, who had himself been abducted by the gang and was made to accompany it from place to place as he could not arrange for payment of the ransom of money of Rs. 10,000/- demanded of him. The other accused pleaded that they had been falsely implicated due to previous animosity. 8. The conviction of the appellants rests on direct evidence of identification by the victims themselves i.e. Omi P.W. 2, Ram Swaroop P.W. 4, Dewan Singh PW 5 and Darab Singh PW 7. There is also evidence of identification by the eye-witnesses, namely, Moti Ram P.W. 6 and Goverdhan P.W. 11. Of theses, the accused Vijay Ram has been identified by Omi P.W. 2, Ram Swaroop, P.W. 4 Dewan Singh, P.W. 2, Ram Swaroop P.W. 4, Dewan Singh, P.W. 5 Moti Ram P.W. 6 and Darab Singh P.W. 7 ; the accused Ramji by Omi P.W.2, Ram Swaroop P.W. 4, Dewan Singh P.W. 5, Moti Ram P.W. 6, Darab Singh P.W. 7 and goverdhan P.W. 11. The accused Rughubir Singh was identified by Ram Swaroop, P.W. 4, Dewan Singh, P.W. 5, Darab Singh P.W. 7; and the accused Babu was identified by Ram Swaroop P.W.4, Dewan Singh P.W.5, and Darab Singh P.W.7. The identification of the appellants by these witnesses as members of the gang of dacoits, which committed the murder of Inderjeet Chamar and abducted. Omi P.W. 2 Ram Swaroop P.W. 4, Dewan Singh P.W. 5 and Darab Singh P.W. 7, is corroborated by their prior identification at the test identification parades. 9. Shri Gupta, learned counsel appearing as amicus curiae for the appellants, contends that the common object of the unlawful assembly was to abduct Omi PW2, Ram Swaroop PW4 and Dewansingh PW 5 and Darab Singh P.W. 7 and not to commit the murder of the deceased Inderjeet Chamar, and therefore, they cannot be convicted under section 302 with the aid of section 149 of the Code. We are afraid the contention cannot be accepted. 10. There can be no manner of doubt that all the appellants excepting accused Babu, were members of the gang of Phula dacoit. The testimony of the 4 victims Omi P W.2, Ram Swaroop P.W.4, Dewan Singh P.W.5, and Darab Singh P.W.7, clearly bears out this fact. We are afraid the contention cannot be accepted. 10. There can be no manner of doubt that all the appellants excepting accused Babu, were members of the gang of Phula dacoit. The testimony of the 4 victims Omi P W.2, Ram Swaroop P.W.4, Dewan Singh P.W.5, and Darab Singh P.W.7, clearly bears out this fact. These witnesses are further corroborated by the eye-witnesses, namely, Moti Ram P.W.6 and Goverdhan P.W. 11. Each of these witnesses has identified some or other of the appellants and their identification in court is corroborated the prior identification in the three test identification parades, held by Shri Prabhatilal P.W.8 and Shri V. D. Hiraway P.W.14 vide identification Memos Ex P 8 and Ex. P.11. 11. The testimony of Shri Prabhati Lal and Shri V.D. Hiraway, the two Magistrates, who held the identification parades in question, clearly shows that due precautions were taken. It is however urged on the strength of the testimony of Shri Mahendra Singh P.W. 16, who was a seizure witness, that 3 of the appellants were kept in the police lock-up. Of theses he mentions, Kedar and an old man as well as another person. This does not imply that the accused were shown to the witnesses by he police prior to the holding of the identification parades. The contention that the accused were not kept Bapardah, cannot therefore be accepted. It is then pointed out that Ram Sawaroop P.W.4 has stated that some of the miscreants, who had their faces muffled, had entered into his house, but did not take away anything. No other witness bears this out. Maybe some of the members of the gang had their faces muffled, but that would not impair the identification of the appellants. There was no suggestion, during the cross- examination of the prosecution witnesses that any of the accused had their faces muffled. 12. It is, therefore, amply proved that the accused were members of the unlawful assembly. When the appellants were members of a gang of dacoits armed with guns, Pharsas and Lathies, it follows that the case would be covered with the 2nd part of section 149, as each of the members knew that death was likely to be caused by the use of the guns. When the appellants were members of a gang of dacoits armed with guns, Pharsas and Lathies, it follows that the case would be covered with the 2nd part of section 149, as each of the members knew that death was likely to be caused by the use of the guns. The appellants, except Babu, have therefore, rightly been convicted under section 302 read with section 149 of the Code, as well as under sections 147 and 358 of the Code. 13. As regards the accused Babu, his case stands entirely on a different footing. In his examination under section 342 Cr.P.C., the accused Babu stated:- Qwyflag o ckcw dk xsax Fkk mlesa 12 fnu eq>s idM+dj lkFk j[kk csgM+ esaA Qwyflag vyx pyk x;k vkSj eSa ckcq nwljk ds lkFk jg x;kA nks yksx lk;iqj ds o ,d Jke ds iqjk dk Qwyflag idM+ dj ys x;k FkkA fQj gksykiqjk ds csgM eSa nksuksa ,d esy gks x,A ogka mDr rhuksa ndM+ ns[ksA pkj jkst Qwyflag ckcq vkSj eSa jgsA jkeLo:i vkSj Jkseh ls Qwyflag us gesa fiVok;kA vkSj pkj fnu idM+k vkSj NksM+ fn;kA mlds rhu fnu ckn eq>s Qwyk ckcq ls nl gtkj ysdj NksM+kA The defence of the accused Babu that he was himself a victim of the dacoits is borne out by the prosecution evidence itself. Two of the victims viz., Ram Swaroop P.W. 4 and Dewan Singh P.W.5 have supported his version. Ram Swaroop PW4 has stated that the other dacoits used to beat the accused Babu & demand payment of a ransom of Rs. 10,000/- for his release. He also states that the dacoits compelled the accused Babu to beat him and out of fright of the dacoit Phula, the accused Babu used to assault him, though Babu himself never wanted to do so. To the same effect is the evidence of Dewan Singh P.W.5, who states that the accused Babu told him while in captivity that he had been abducted by the decoits and they were damanding payment of ransom. 14. The matter is squarely covered by section 94 of the Code, which reads - "94. To the same effect is the evidence of Dewan Singh P.W.5, who states that the accused Babu told him while in captivity that he had been abducted by the decoits and they were damanding payment of ransom. 14. The matter is squarely covered by section 94 of the Code, which reads - "94. Except murder, and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence. Provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint. Explanation 1. ... ... ... Explanation 2.-- A person seized by a gang of dacoits, and forced by threat of instent death, to do a thing which is an offence by law, for example, a smith compelled to take his tools and to force the door of a house for the dacoits to enter and plunder it is entitled to the benefit of this exception." Nothing is an offence, except murder and offences against the State punishable with death, which is done by a person who is compelled to do it by threats. Explanation 2 is clearly attracted, in the facts and circumstances of the case. The learned Additional Sessions Judge was, in our view, not right in holding that there was no apprehension of instant death, when admittedly the gang of dacoits was armed with guns and other deadly weapons. We, therefore, give to the appellant Babu the benefit of doubt and acquit him of the offences with which he was charged. 15. In the result, all the appeals, except D.B. Criminal Appeal No. 624 of 1972 Babu v. State of Rajasthan , are dismissed, while the conviction and sentences passed by Additional Session Judge on the appellants Vijai Ram, Raghubir Singh, Kedar and Ramji under section 302 read with section 149, sections 365 and 147 of the Code are confirmed but that of the appellant Babu is set aside and he is acquitted of all the charges. We direct that the appellant Babu be set at liberty forthwith unless he is required in connection with some other offences.Appeals decided accordingly. *******