JUDGMENT M.M. Gupta, J. 1. Appellants Babu, (Ram Charan, Nanhu Singh and Harpal Singh have filed this appeal against their conviction under Sec. 395 IPC and the sentence of rigorous imprisonment for five years. Ram Charan has also filed Cr. A. No. 2798 of 1976. 2. According to the prosecution allegations on the night between 19th and 20th September 1974 Radhey Shyam complainant was sleeping in his shop along with his mother in village Bairani with in the Police Circle of Bilari. In the room of the upper storey his brother Jagdish was sleeping. His son Kali Charan and his wife Smt.Chandramukhi were sleeping in the Sehan. His son Jaipal and his wife were also sleeping in the room on the upper storey. A gas lantern was also lighted there. In the same premises were the flour mill and the expeller. At about midnight six bad characters scaled over the wall of the flour mill. They caught hold of the complainant's servant Marroo. He was beaten and was asked about the whereabouts of the gun of the complainant. On the alarm raised by him the complainant Radhey Shyam tried to break open the lock of his Kothari and enter it in order to take out the gun. He was fired at by one of the dacoits. He, however, succeeded in entering into the room and in chaining it from inside. His mother Smt.Kalawati succeeded in running out of the house who raised an alarm in the village. His brother Jagdish jumped on the roof to escape but he was also caught hold of by the dacoits. They were enquiring from him about the gun. The inmates of the house who had torches with them were flashing, at the dacoits. The complainant Radhey Shyam also fired a shot at the dacoits through the crevices in the door leaves as a result of which one of the dacoits was lit and he rolled down stairs and fell in the Angan. Jagdish who was caught hold of by the dacoits, made entreaties with his brother to open the door. The dacoits, however, left the scene of occurrence with considerable gold ornaments, silver and wrist watches. The dacoits were armed with fire arms, lathi and Dandas. While leaving the place they also left the butt of the gun bearing No. 74324. Jagdish who was caught hold of by the dacoits, made entreaties with his brother to open the door. The dacoits, however, left the scene of occurrence with considerable gold ornaments, silver and wrist watches. The dacoits were armed with fire arms, lathi and Dandas. While leaving the place they also left the butt of the gun bearing No. 74324. Radhey Shyam lodged the first information report of the occurrence at Police Station Bilari on 20-9-1974 at 9.30 A.M. Police Station Bilari is at a distance of about nine miles from the scene of occurrence. Sri Mahak Singh S.O. Bilari took up the investigation of the case. He recorded the statements of Radhey Shyam, Jagdish, Kali Charan and Matroo who were injured at the Police Station. They were sent for medical examination. Radhey Shyam on examination by Dr. Pramod Kumar Medical Officer Incharge, Public Health Centre, Bilari on 20th September 1974 at 1.10 P.M. was found to have five oval lacerated wounds including one which was in an area of 21 cm. x 10 cm which were caused by fire-arm. All the injuries were simple and were about half to one day old. Kalicharan, son of Radhey Shyam who was examined by Dr. Pramod Kumar the same day at 1.40 P. M. was found to have five abrasions on different parts of his body. These injuries were simple and were caused by blunt weapon and were about half to one day old. Matroo who was the servant of Radhey Shyam was examined at 2.20 P.M. the same day by Dr. Pramod Kumar. He was found to have two traumatic swellings on the left thigh and on sacrum and lower lumber vertebral region. These injuries were kept under observation and X'ray was advised of left thigh and lower vertebral and sacral region. These injuries were caused by blunt weapon and were about half to one day old. Jagdish was also examined by Dr. Pramod Kumar at 3 P. M. on 20th September, 1974. He was found to have six traumatic contusions, two traumatic swellings and two oval scabbed wounds on different parts of the body. All injuries excepting two oval scabbed wounds which were caused by fire arm were caused by blunt weapon. The injuries were simple and were about half to one day old. The Investigating Officer went to the scene of occurrence and inspected it. All injuries excepting two oval scabbed wounds which were caused by fire arm were caused by blunt weapon. The injuries were simple and were about half to one day old. The Investigating Officer went to the scene of occurrence and inspected it. He also prepared the site plan. He also found pellet marks on the walls, and door leaves. He also recovered blood lying on the floor of the stair-case. He also took in his possession a number of articles left by the dacoits from the scene of occurrence including the butt of the gun No. 74324. These articles were duly sealed. He also recovered tiklies and other articles from the scene of occurrence. He further found the marks of dragging and blood stains on the Rasta through which the dacoits retreated from the place of occurrence. 3. On 25-9-1974 the Investigating Officer arrested Babu appellant at about 7 P. M. on the road coming from Rampur side. ON search being taken the stolen articles of this case a pair of silver chains were recovered from the possession of Babu appellant. A pistol and four cartridges were also recovered from his possession. These articles were duly sealed. Their recovery memo were prepared. Babu appellant was made Bapurdah. ON his interrogation the complicity of Harpal Singh and Ram Charan appellants also came to light. The articles recovered from the possession of Babu appellant were deposited in the Malkhana of the Police Station. Appellant Ram Charan was arrested on 28-9-1974 by S. I. Rajpal. Harpal was arrested on 8th October, 1974 by Kalyan Singh Yadav S. I. A report for holding their identification in jail was made. They were put to identification before Sri Jai Krishna Paliwal Executive Magistrate. The property recovered from the possession of Babu appellant was also put to identification under the supervision of an Executive Magistrate. Appellant Nanhu was arrested on 7-5-1975 by the Investigating Officer. His identification parade was held on 21-5-1975 by Sri Jai Krishna Paliwal. The other suspects of this case were also arrested. After their identification proceedings were completed charge sheet was submitted against them. 4. Appellant Babu denied the recovery of the stolen property from his possession. He claimed that after his arrest he was not kept Bapurdah. He also denied having committed the dacoity. All the other appellants denied having committed the dacoity in question. After their identification proceedings were completed charge sheet was submitted against them. 4. Appellant Babu denied the recovery of the stolen property from his possession. He claimed that after his arrest he was not kept Bapurdah. He also denied having committed the dacoity. All the other appellants denied having committed the dacoity in question. They claimed that they were not kept Bapurdah and also they were shown to the witnesses. The prosecution in support of its case examined among the eye witnesses Radhey Shyam PW 4, Smt.Kusumlata PW 15, Jagdish PW 16, Jaipal PW 17 and Lakhan Singh PW 19. Besides these witnesses the Court Moharrir, the witnesses who arrested the appellants and the witnesses who escorted them from the place of their arrest to Police Station Bilari and from Police Station Bilari to the District Jail, Moradabad, Investigating Officers were also examined. 5. The learned Sessions Judge, however, had not recorded the statement of the Executive Magistrate before whom the appellants were put to identification. He was, therefore, examined by the learned Sessions Judge under the orders of this Court. The statement of the Executive Magistrate Sri Jai Kishan Paliwal who had conducted the identification parades is now on the record of this Court. 6. The learned Sessions Judge relied on the testimony of the eye-witnesses and found the evidence of identification against the appellants and also of the property satisfactory. He accordingly convicted and sentenced the appellants as stated above. The learned counsel for the appellants had assailed the findings of the learned Sessions Judge. 7. The testimony of Radhey Shyam PW 4 and other witnesses examined in this case coupled with the fact that four persons received fire arm and blunt weapon injuries and the fact that the Investigating Officer found on the scene of occurrence tiklies and Khokhas and other articles left by the docoits including the butt of a gun No. 74324 which was later ok, recovered from the possession of one Sompal Singh who held the licence of that gun do not leave any room for doubt that Radhey Shyam PW 4 was the victim of a serious dacoity in which a large number of ornaments of substantial value silver and watches etc. were looted. 8. were looted. 8. Radhey Shyam PW 4 further claims that at the time of the occurrence he was sleeping at the Sehan with his wife, daughter and son Kali Charan and his wife. Matroo, who was one of his servants was sleeping in the Kothari near the stair-case. Jagdish PW 16 was sleeping in the upper storey. One of his sons Jaipal PW 17 and Matroo had torches wtith them. They were flashing them. Besides it a gas lantern was also burning in the house. It may also be mentioned that a flour mill and an expeller are also run in the same building. It is, therefore, not surprising that a gas lantern was also burning at that place. There can, therefore, be no doubt about the fact that there were adequate ample sources of light available to the witnesses. Radhey Shyam PW 4 claims that at about 12 in the night six dacoits scaled over the wall of his flour mill and caught hold of his servant Matroo. They wanted him to disclose the place where the gun was kept. He immediately went inside the Kothari of his house and wanted to take out the gun. But as he was entering the Kothari one of the bad characters fired at him as a result of which he received fire-arm injuries. He, however, succeeded in locking the door of the Kothari from inside. His mother went out and raised an alarm in the village. Jagdish PW 16 tried to jump over the roof but he was caught of by the dacoits. He was also tortured. His son Jaipal PW 17 was flashing his torch at the dacoits. When the dacoits were trying to force Jagdish to come down stairs Radhey Shyam fired at the dacoits as a result of which one of the dacoits received fire arm injuries. He rolled down stairs. The dacoits, however brought Jagdish PW 16 in front of his room. Jagdish also made entreaties on him to pass on his gun to the dacoits. The dacoits carried on their plunder for about 45 minutes. During the course of the dacoity the dacoits were flashing torches and bringing moveables from the upper storey to the ground floor. On being pressed by the villagers the dacoits retreated. He had seen the faces of the dacoits in the torch light as well as in the gas lantern light. During the course of the dacoity the dacoits were flashing torches and bringing moveables from the upper storey to the ground floor. On being pressed by the villagers the dacoits retreated. He had seen the faces of the dacoits in the torch light as well as in the gas lantern light. The dacoits had guns, pistols and lathis. 9. The statement of this witness and that of Smt.Kusumlata PW 15, Jagdish PW 16 and Jaipal PW 17 show that they were all inmates of the house and were present inside the house. Out of these witnesses Radhey Shyam PW 4, Jagdish PW 16 and Jaipal PW 17 also received injuries at the hands of the dacoits. Smt.Kusumalata, daughter of Radhey Shyam PW 4 was also inside the house. Thus, there is no reason to doubt their presence on the scene of occurrence. They had all opportunities to come close to the; dacoits and see their faces. Out of these witnesses in the various parades of the suspects held on 16 th October 1974 Radhey Shyam PW 4 had correctly identified Babu and Ram Charan appellants. However, he had committed four mistakes in the parades of other suspects. Jagdish PW 16 had correctly identified Harpal, Ram Charan and Babu appellants on 16th October 1974 in the parade held under the supervision of the Executive Magistrate Sri Jai Kishan Paliwal. He, however, committed one mistake in the parade of another suspect on 27-12-74. That is, however, immaterial and it cannot be taken into account. Jaipal PW 17 had correctly identified Babu and Ram Charan appellants in the parade held on 16th October 1974 and had committed no mistakes. Smt.Kusumlata PW 15 had correctly identified Ram Charan and Babu appellants and Nanhu appellant in the parades hald on 16-10-1974 and 21-5-1975 respectively. Similarly, Lakhan Singh PW 19 claims that at about 12 in the night he woke up on the alarm raised in the village that the house of Radhey Shyam PW 4 was being looted by the dacoits. He, therefore, came and assembled along with the other witnesses at the bouse of Harpal which is to the south-west to the house of Radhey Shyam PW 4. They had taken cover behind a place where bricks were stocked. From that place the door of Radhey Shyam PW 4 was fully in view. He, therefore, came and assembled along with the other witnesses at the bouse of Harpal which is to the south-west to the house of Radhey Shyam PW 4. They had taken cover behind a place where bricks were stocked. From that place the door of Radhey Shyam PW 4 was fully in view. In the torch light flashed by them he saw the faces of the dacoits. He also saw the dacoits causing injuries to Jagdish PW 16. He had correctly identified Harpal and Babu appellants in the parade; held on 16th October 1974. In the parade held on 21-5-1975 all the aforementioned eye-witnesses excepting Jagdish PW 16 had correctly identified Nanhu in jail. The Executive Magistrate (Sri Paliwal) who had conducted the identification proceedings, has stated that he had taken all necessary precautions to ensure fair conduct of the identification of the appellants by the witnesses. He, however, stated that on the forehead of Babu appellant there were deep wrinkles. The identification was held on 16-10-1974 whereas the statement of the Executive Magistrate Sri Jai Kishan Paliwal was recorded in 1981. It is quite probable that Babu appellant might have developed wrinkles in the forehead long after the identification proceedings took place. Thus, it is not established that he had wrinkles on his forehead at the time of the identification proceedings took place. Thus it is not established that he had wrinkles on his forehead at the time the identification parade was held. Much importance, therefore, cannot be attached to this statement. Similarly, in the case of Nanhu appellant he has admitted that there was a black mole on the left ear of Nanhu at the time the statement of Sri Jai Kishan Paliwal was recorded. I do not think that this mole on the left ear of the appellant Nanhu, even if it went unnoticed at the time of the, parade, could be known to the witnesses and could make his identification easier. Thus, these are such trivial matters which could not give advantage to the witnesses in identifying any of the appellants Babu or Nanhu. Thus, these are such trivial matters which could not give advantage to the witnesses in identifying any of the appellants Babu or Nanhu. The performance of these witnesses excepting Radhey Shyam PW 4 was good at the time of the identification in jail and can be held to be reliable, if the Police in the course of the arrest of the appellants and their transit to jail had not used any unfair means in showing them to the witnesses. 10. PW 20 Sri Mahak Singh, Investigating Officer, claims to have arrested appellant Babu on 25-9-1974. After his arrest he had recovered two silver chains Exs. I and II which were the stolen property of this case and a pistol and four cartridges. The witnesses to his arrest and recovery of the articles from his possession were Mahendra Singh PW 2 and Surendra Singh PW 3. Mahendra Singh PW 2 states that two years and two months prior to the date of his evidence he along with Surendra Singh PW 3 was returning from Bilari. When he was on the Service Road between Rampur and Khodar he found at 7 PM that the Police Party was chasing a bad character who was coming towards them. He was arrested in his presence. Apart from one pistol and four cartridges two silver chains were recovered from his possession. The witness identified Exs. I and II as those chains which were recovered from that bad character. He also stated that the memo of recovery were prepared by the Sub-Inspector after the silver chains and pistol and cartridges were sealed separately. However when he was asked to identify the person who was arrested in his presence he pointed to Ram Charan appellant as that person. It is quite probable that on account of lapse of time his memory faded and he could not identify the person who was arrested in his presence but his testimony does not leave any room for doubt about the fact that a person was arrested with silver chains Exs. I and II which were also correctly identified before the Magistrate and in court by PW 15 Smt.Kusumlata and by PW 17 Jaipal. Similar is the statement of Surendra Singh PW 3 who claims that a person was arrested by the Policemen when he was going in the company of Mahendra Singh PW 2. After his arrest two silver chains Exs. Similar is the statement of Surendra Singh PW 3 who claims that a person was arrested by the Policemen when he was going in the company of Mahendra Singh PW 2. After his arrest two silver chains Exs. I and II and a pistol and four cartridges were recovered from his possession. The person arrested gave out his name as Babu appellant. The only blemish in his statement is that he could not identify Babu appellant in Court. In my opinion this witness spoke the truth and on account of passage of time he honestly stated that he was unable to identify him. PW 20 Sri Mahak Singh clearly states the circumstances in which Babu appellant was arrested and from his possession the silver chain Exs. I and II were recovered. They were duly sealed. He correctly identified him as the person arrested by him. He also states that the articles recovered from the possession of Babu appellant were duly sealed after their recovery memo were prepared. He further claims that Babu appellant was immediately made Bapurdah after his arrest. The link evidence of his being brought to Police Station and his admission to Jail Bapurdah and his being kept Bapurdah till his admission in Jail is proved by Surajpal Head moharrir PW 9 and Rajvir Singh PW 8. Their testimony clearly shows that Babu appellant was not shown to any one between the period of his arrest and (sic) PW 13 claims that he had arrested Ram Charan appellant from his house in village Basera on 28-9-1974 and had made him Bapurdah. He had brought him to Police Station Bilari Bapurdah and an entry of his being brought Bapurdah was made in the general Diary. Yogendra Sharma PW 12 claims that he had taken appellant Ram Charan to Jail Bapurdah and during this period he was not seen by any one. His evidence also shows that no unfair means were used in showing Ram Charan appellant to the witnesses. PW 7 Kalyan Singh Yadav claims that he had arrested Harpal appellant on 8th October 1974. He was arrested along with Sompal in front of the Block Office. Sompal had a gun with him. Both were made Bapurdah. This gun which was recovered from possession of Sompal bore no. 74324. It was without its Chop which was recovered from the scene of occurrence. He was arrested along with Sompal in front of the Block Office. Sompal had a gun with him. Both were made Bapurdah. This gun which was recovered from possession of Sompal bore no. 74324. It was without its Chop which was recovered from the scene of occurrence. We are, however, not concerned in this appeal with Sompal. After the arrest Harpal appellant and Sompal were made Bapurdah. No one got any opportunity during this period to see them. Pw 18 Kirpal Singh states that he had taken the appellant Harpal on 9-10-1974 to Jail from Police Station Bilari and during this period he remained in his custody and he was not shown to any one and remained Bapurdah. 11. It is claimed by PW 20 Sri Mahak Singh that he arrested Nanhu appellant on 7-5-1975 at 8 A. M. from his house After his arrest he was made Bapurdah and was brought to Police Station Bapurdah. The entry of his arrival at the Police Station was made by Head moharrir Roshan Lal PW 14. Rajvir Singh PW 8 claims that he had taken Nanhu appellant to Jail the same day He was kept Bapurdah throughout and no one was allowed to see him. Thus the testimony of these witnesses clearly shows that all the appellants from the time of their arrest and to the time of their admission in Jail were kept Bapurdah and were not allowed to be seen by any one. Their sworn testimony clearly negatives the defence of the appellants that they were shown to the witnesses after their arrest and were not kept Bapurdah. 12. I am satisfied that between the time of the arrest of the appellants and their admission in Jail no unfair means was used by the Police. The evidence of identification by the witnesses, as already held above, was highly satisfactory. There were four good witnesses of identification of person against Babu appellant, and also witnesses of recovery of stolen property from his possession four good witnesses of identification against Ram Charan appellant and two good witnesses of identification against Harpal appellant. There were also three good witnesses of identification against Nanhu appellant. The learned Sessions Judge was, therefore, perfectly justified in finding all these four appellants guilty of the offence under section 395 IPC. He was perfectly justified in convicting the appellants. There were also three good witnesses of identification against Nanhu appellant. The learned Sessions Judge was, therefore, perfectly justified in finding all these four appellants guilty of the offence under section 395 IPC. He was perfectly justified in convicting the appellants. However in a case like the present one in which one of the victims had received fire arm injuries the others were injured and received blunt injuries the learned Sessions Judge was wholly unjustified in talcing a lenient view and in imposing a sentence of only five years RI against the appellants. A sentence of RI for ten years in a case like the present one would have been the [proper sentence. However, the sentences imposed has to be maintained against the appellants as the State has not moved this Court for enhancement of sentence. The appeals are hereby dismissed. The conviction and sentences imposed against the appellants are hereby maintained. The appellants are on bail. They shall be taken into custody forthwith to serve out their sentences. Appeal dismissed.