JUDGMENT 1. - These two appeals are directed against the judgment passed by the learned Addl. Sessions Judge, Sirohi, by which the appellants were held guilty for the offence under Section 307 read with Section 34 IPC and each of them was sentenced to three years' rigorous imprisonment and a fine of Rs. 1000/-, in default to undergo six months rigorous imprisonment. Accused Babu was also convicted for the offence under Section 394 IPC and sentenced to rigorous imprisonment for one year and a fine of Rs. 500/-, in default to undergo three months rigorous imprisonment with an order that his substantive sentences for both the counts shall run concurrently. 2. As these two appeals arise out of the same judgment, I propose to dispose them of by one single judgment. 3. Briefly stated the facts of the case giving rise to these appeals are as under: Prem Raj (PW 4) was the Chairman of Co-operative Society of village Jhunta and in that capacity was also the ex-official member of the Gram Panchayat of the village. A few months prior to the incident in which Prem Raj sustained injuries on 24-11-73, he had made a complaint in the Gram Panchayat, Jhunta, against Harji (co-accused acquitted by the learned trial Judge) for construction of a Chabutari. The Gram Panchayat took the decision for removing that Chabutari which caused annoyance to Harji against Premraj. Punamchand another co-accused (acquitted by the learned trial Judge) was carrying on business of liquor in the shop of Harji and was also said to be annoyed with Prem Raj for that reason. The prosecution case was that Harji and Punamchand conspired with the three appellants and directed them to kill Premraj. That, in pursuance of that conspiracy in the morning of 24-11-73 the three appellants assembled on a culvert near the field of Prem Raj to kill him. That, at about 11 a.m. when Prem Raj was going to his field, saw the three appellants sitting on the culvert. Guman Singh is said to have a lathi with him at the time. That, when Prem Raj crossed from the culvert, Babu caught hold of his neck and told him `Netaji Kiya Hal Hai' and dealt with fist blows on his face. Guman Singh is said to have a lathi with him at the time. That, when Prem Raj crossed from the culvert, Babu caught hold of his neck and told him `Netaji Kiya Hal Hai' and dealt with fist blows on his face. Just then Guman Singh inflicted a lathi blow on his head and Gordhan caused injuries with a knife of his fore-head and scalp The Golden chain which Prem Raj was wearing was snatched by Babu. The assailants than threw injured Prem Raj in a pit. Prem Raj raised a cry of `Mare re Mare re' which attracted Adu Ram (PW 3) who was in his neighbouring field Adu Ram (PW 3) reached to the site and saw the assailants going at a little distance. Ghanshyamdas (PW 1) also reached the site and saw the assailants retiring towards the hillocks. Adu Ram (PW 3) and Ghanshyamdas (PW 1) brought injured Prem Raj on a cycle to his shop, where Bhanwar Lal, Devilal, Bhagsingh and Madandan were present. Prem Raj who had become unconscious at the site regained consciousness and told the persons present at the shop that three persons had caused injuries to him and snatched his golden chain. Adu Ram (PW 3) went to police station, Raipur and lodged the report Ex. P. 1 before PW 20 Asat Ali Khan, Head Constable, in charge of that police station. First Information Report Ex. P. 24 was chalked. The Head Constable went to the site and prepared the Site Plan Ex P. 2 and Site Inspection Memo Ex. P. 3. He took the blood stained stones, blood stained soil and the control soil from the site and sealed them. Injured Prem Raj was sent to Government Hospital, Sojat City for treatment. Dr. D.B. Bhandari (PW 13) examined Prem Raj on 24-11-1973 and noted followed injuries on his person: 1. Incised wound 3/4" x 1/4"bone deep oblique vertical over forehead in middle of both mideal ends of eye brows. 2. Incised wound 3/4"x 1/4" x 1/4" transverse on the left side of fore-head 1" away from injury No 1. 3. Incised wound ⅓" x 1/4" bone deep on the left side of forehead 11/4" above injury No, 2. 4. Lacerated wound 2" x 1/4" x bone deep on the right side 11/4"" above the injury No. 1. 5. 2. Incised wound 3/4"x 1/4" x 1/4" transverse on the left side of fore-head 1" away from injury No 1. 3. Incised wound ⅓" x 1/4" bone deep on the left side of forehead 11/4" above injury No, 2. 4. Lacerated wound 2" x 1/4" x bone deep on the right side 11/4"" above the injury No. 1. 5. Incised wound 1" x 1/4" x bone oblique on right side of forehead 1" to the right of injury No. 4. 6. Haemotoma 1" x 1" over right maxillary region. 7. Incised wound 3/4" x 1/4" transverse over inner middle of the upper lip. 8. Lacerated wound 1/2" x 1/10" transverse over vermilion border or upper lip in the middle. 9. Contusion 2" x ⅓" over left parietal region. 10. Swelling and tenderness 3" x 11/2" in front at left external region. 11. Contusion 11/2" x 1" over right maxillary region. 12. Incised wound 1/2" x 1/10" x 1/10" just below the bridge of nose. 13. Swelling and teaerness on whole of right loin region. 14. Swelling and tenderness whole of left loin region. The injury report is Ex. P. 15. 4. On 28-11-73, S.H O. Om Prakash who had taken the investigation in his charge on 27-11-73 arrested appellant Guman Singh vide memo Ex. P. 12. In pursuance of the information furnished by accused Guman Singh one lathi was recovered from beneath a cactus tree from the border of a field, On 29-11-73 appellant Gordhan was arrested vide memo Ex. P.28. Assailant Babu was apprehended by Habib Khan, Head Constable on 1-12-73 and produced before the S.H O. who arrested him vide memo Ex. P.29. Gordhan, while under custody furnished information to Head Constable Asat Ali Khan for getting recovered the knife and in pursuance of the information Gordhan got the knife Ex. 11 recovered by dugging the ground The Head Constable took it in possession and sealed. While under custody, Babu appellant furnished information to S.H.O. Om Prakash for getting recovered one golden chain with a locket bearing the portrait of Lord Krihsna. The information reduced into writing is Ex. P.13. In pursuance of that information, the appellant got recovered the golden chain with locket Ex. 9 from a box in his house which the S.H.O. took in possession vide Memo Ex. P. 13 and sealed it. Appellant Babu also produced one stick and a `Kada'. The information reduced into writing is Ex. P.13. In pursuance of that information, the appellant got recovered the golden chain with locket Ex. 9 from a box in his house which the S.H.O. took in possession vide Memo Ex. P. 13 and sealed it. Appellant Babu also produced one stick and a `Kada'. Harji and Punaram were also arrested during the course of investigation. 5. Upon completion of necessary investigation charge-sheet against the appellants for the offences under Section 120 B,307 and 326 I.P.C. was filed in the court of Munsif Magistrate, Jetaran. The learned Magistrate finding a prima facie case exclusively triable by the court of Sections committed the appellants to the Court of the Addl. Sessions Judge, Sirohi. The learned Additional Sessions Judge charge-sheeted the three appellants and Harji and Punaram for the offence under Section 120-B I.P.C. The three appellants were also charge-sheeted for the offences under Section 307 read with Section 34 I.P.C. and 394 read with Section 397 I.P.C. On the denial of the appellants and the two accused for the indictments trial proceeded. Prosecution examined 22 witnesses in all to substantiate its case. In their statements under Section 313 Cr. P.C. all the accused denied the allegations levelled against them. Appellant Babu admitted the recovery of the chain at his instance from his house but stated that the chain belonged to his brother Pukhraj. No defence witness was examined. The learned trial Judge did not hold the charge of conspiracy proved against any of the accused and, therefore, acquitted them all for the charge under Section 120-B I.P.C. The learned Judge however held the prosecution case for the charge of attempt to murder established and convicted the appellants for the offence under Section 307 with the aid of Section 34 l.P.C. as stated earlier. In view of the finding of the learned Judge for the charge under Section 394 I.P.C. the appellant Babu was convicted/and sentenced for that, offence as stated above. 6. I heard Mr. S.N. Deedwania, learned counsel for the appellant Guman Singh and Mr. P.L. Choudhary, learned counsel for the appellants Gordhan and Babu and Dr. S.S. Bhandawat, learned Public Prosecutor for the State and carefully examined the record of the case. 7. There is direct as well as circumstantial evidence adduced by the prosecution to substantiate its case. 6. I heard Mr. S.N. Deedwania, learned counsel for the appellant Guman Singh and Mr. P.L. Choudhary, learned counsel for the appellants Gordhan and Babu and Dr. S.S. Bhandawat, learned Public Prosecutor for the State and carefully examined the record of the case. 7. There is direct as well as circumstantial evidence adduced by the prosecution to substantiate its case. The prosecution has examined Ghanshayam (P.W. I) and Adu Ram (P.W.3) to the state that immediately after the incident they had reached the site and seen the assailants returning towards the hillocks. There is also the evidence of Bhag Singh (P.W 2) to the effect that when Prem Raj was brought to the shop he told about three persons causing injuries to him and snatching his golden chain. Prem Raj (P.W.4) is the injured who has stated about appellant Guman Singh causing injuries to him with lathi, appellant Gordhan with knife and appellant Babu with, fist blows and stones and all the three throwing him in the pit. He has also stated about Babu snatching his golden chain. The circumstantial evidence against the appellants Guman Singh and Gordhan is the recovery of the lathi and the knife respectively in pursuance of the information furnished by them. The circumstantial evidence against Babu is the recovery of the golden chain Ex.9, In pursuance of the information furnished by him. 8. At the very out-set, I may observe that the alleged recovery of the lathi and knife from Guman Singh and Gordhan are of no help to the prosecution, because, apart from the recovery being from open space, there is no evidence- to connect these weapons with the commission of the crime. 9. Mr. Deedwania, the learned counsel for the appellant Guman Singh strenuously contended that there is not an iota of evidence against Gumansingh to hold him guilty for any offence. That, whereas Gordhan and Babu were put for test identification, for the reasons best known to the prosecution no parade was conducted for Guman Singh to establish that the prosecution witnesses, identifying him at the trial, were in a position to pick him out from amongst others in the parade. 10. The learned Public Prosecutor has contended that there was every reason for the learned Judge to place reliance on the prosecution witnesses against Guman Singh appellant despite the failure of the prosecution to gut identification parade arranged for him. 10. The learned Public Prosecutor has contended that there was every reason for the learned Judge to place reliance on the prosecution witnesses against Guman Singh appellant despite the failure of the prosecution to gut identification parade arranged for him. That, the learned trial Judge has held that, as Prem Raj had the occasion to see the three assailants in the night previous to the occurrence and again at the time of occurrence, Gumansingh not being put up for test identification at the parade would not make any different. Relevant it is to note that the evidence of witnesses regarding all the three appellants, so far as reasons for identifying them are concerned is exactly the same. Prosecution has not explained as to why identification parade was not held for Guman Singh. This is correct that the occurrence had taken place in day light and injured Prem Raj is the main witness. Out of the two witnesses said to have reached the site, Ghanshyam was not a witness at the parade. Adu Ram (PW 3) had seen the assailants while they were retiring towards the hillocks. The value to be attached to the identification witnesses would be discussed while looking to the case of Gordhan and Babu. Suffice it to say for the present that the prosecution not caring to get the identification parade held for Guman Singh is a serious infirmity in the prosecution. 11. The object of holding identification parade is to make sure as to whether persons claiming to identify the culprits can pick them up from amongst a number of persons. Importance of conducting identification parade for the suspects who are not previously known to the witnesses has been emphasised by highest Court of the country time and again. 12. In the case of Chanampara Cheillappan & Ors. v. State of Kerala, 1979 (4) S.C.C. 312 . the name of the accused not being in the First Information Report, his identification in court without any test identification parade, was held valueless. 13. In the case of Kanan & Ors v. State of Kerala, 1979 (3) S.C.C. 319 it was considered to be wholly unsafe to rely on the testimony of the witness regarding identification of accused for the first time in the court because of the failure to conduct test identification parade in respect of accused unknown to the witnesses. 14. 13. In the case of Kanan & Ors v. State of Kerala, 1979 (3) S.C.C. 319 it was considered to be wholly unsafe to rely on the testimony of the witness regarding identification of accused for the first time in the court because of the failure to conduct test identification parade in respect of accused unknown to the witnesses. 14. There may be cases in which the witnesses identifying the accused at the trial may inspire such a confidence that in the absence of test identification parade even, their testimony can be acted upon to convict the accused. In such cases Courts are however expected to look for other circumstances of the case lending support to the testimony of such witnesses. As observed above, there is no evidence against Guman Singh except his being identified by the witnesses at the trial and, therefore, there is no guarantee that the witnesses might not have committed an error. It is all the more so when, as the prosecution case goes, the co-accused Harji and Punaram who had faced trial for the conspiracy belonging to the same village were known to the witnesses and Gordhan and Babu, the strangers, were put up for test identification parade and the witnesses had the occasion to see them prior to their pointing them out at the trial Guman Singh being the fifth person at the trial, there could not be any difficulty for the witnesses to point him out to be the third assailant. And the prosecution felt content by getting the assailants identified only at the trial on the ground that in day light, it would not have been difficult for the injured and Aduram to identify them,and as such there was no necessity for the parade, the matter would have been different. But, when two accused, whose case is exactly the same, were put for test identification at the parade, the learned counsel for the appellant Gumansingh has a legitimate argument to advance that prosecution agency might be under a dilemma as to whether Gumansingh was actually there amongst the assailants or not or whether the witnesses would not make a mistake in identifying him at the parade. According to the learned counsel it might be in order to avoid that risk that prosecution might have thought it proper to keep Gumansingh away from the identification parade. According to the learned counsel it might be in order to avoid that risk that prosecution might have thought it proper to keep Gumansingh away from the identification parade. In this view of the matter, I am of the opinion, that the very fact of the prosecution discriminating the investigation of Gumansingh from that of the other two suspects of the actual occurrence, may lead to the conclusion that it can not be said with certainty that Guman Singh was one of the assailants in the case. 15. Coming to the case of Gordhan and Babu Appellant, it is to be noted that prosecution has put them up at a test identification parade and they were identified by certain witnesses. There is also evidence about the recovery of a golden chain of Prem Raj at the instance of Babu in pursuance of the information furnished by him. I would first discuss the evidence and the law cited regarding the identification proceedings. 16. Gordhan was arrested on 29 11-73 and Babu on 1-12-73. Gordhan was identified by Prem Raj, Ramchandra, Heturam, Aduram and Bhuraram. All these witnesses except Bhuraram had identified Babu also at the parade conducted on 26-12-73 by Shri Mahaveer Chand Jain S.D.M., Jetaran. So far as the identification by Bhurarm, Heturam and Ramchandra is concerned, it may be said at the very out set that it has no value. The reasons is that they are all of witnesses of the alleged conspiracy at the house of Harji or the shop of Punaram and the learned trial Judge has not believed their testimony so far as the conspiracy part of the prosecution case is concerned. The contention of the learned Public Prosecutor is that they might not have been believed for the charge of conspiracy but for that reason their evidence for seeing the three assailants in the village on the day previous to the occurrence should not be discarded. The argument has no force. The testimony of these witnesses has been considered to unbelievable and vague, and in my opinion rightly so, by the learned trial judge. Bhura (PW 6) has stated that he had seen Babu and Gordhan at the liquor shop of Punaram in the month of`Migsar' at night. According to him he had consumed liquor that day. The testimony of these witnesses has been considered to unbelievable and vague, and in my opinion rightly so, by the learned trial judge. Bhura (PW 6) has stated that he had seen Babu and Gordhan at the liquor shop of Punaram in the month of`Migsar' at night. According to him he had consumed liquor that day. The witness admitted that it was only on that day that he had consumed liquor for the first and last time. It is also pertinent to note that the witness had admitted that the accused were shown to him by the police prior to the identification parade. No reliance can be placed on the testimony of this type of witness. Ram Chandra (PW 8) is another witness of the identification parade. He has stated about Harji and Puna consuming liquor and the three assailants eating rice at the house of Harji on the day previous to occurrence. According to the witness Harji and Puna were directing the three appellants to kill Premraj and the three appellants were saying `Han Han'. It is important to note that the conduct of the witness is very strange. Even on hearing such a talk he did not inform Premraj about it so that he might become alert. The talk according to the witness had taken place at about 10.30 in the night when the witness was going to ease himself. According to the witness on hearing the loud voice of Puna he entered the house. He admitted that it was for the first time that he had gone inside that house. He admitted that the police had recorded his statement four days after the occurrence. Though he has explained the reason for this delay that he had gone to the village of his son-in-laws next day, but that will not be an explanation for his unnatural conduct in keeping quiet for the night even on knowing about such conspiracy. This witness had admitted to be with Premraj, Aduram, Bhura and Heturam while going test identification at the parade. The learned counsel for the appellant has stressed that if the accused were shown to Bhuraram by the police prior to the identification parade, then other witnesses must also have seen them prior to the parade. Be it as it may, this type of evidence of Ramchandra does not inspire confidence. The learned counsel for the appellant has stressed that if the accused were shown to Bhuraram by the police prior to the identification parade, then other witnesses must also have seen them prior to the parade. Be it as it may, this type of evidence of Ramchandra does not inspire confidence. When he had been disbelieved from the conspiracy part, there appears to be no ground to believe him regarding the identification of the assailants. Heturam has claimed to have seen the three appellants at the house of Puna on the day of occurrence in the morning. According to the witness he was running a hotel at village Jhuuta and had taken tea to the house of Puna. The witness admitted in the cross examination that the shop of Harji which Punaram was now occupying was on rent with his father previously and he was carrying on liquor business in that shop. He also admitted that because of Punaram starting that business his father's business had stopped. The learned counsel for the appellants urged that this man being inimical with Harji and Punaram might have given evidence in the case. The argument is not devoid of force The identification of Gordhan and Babu by this witness therefore is of no value. 17. The two important witnesses to the actual occurrence except the injured Premraj as Ghanshyam (PW 1) and Adu ram PW 3). As stated earlier Ghanshayam (PW 1) had seen the assailants running towards the hillocks from a distance of a mile or 3/4th of a mile. He is not a witness to the identification parade. Aduram (PW 3) has claimed to have seen the assailants from a short distance. According to him while going to his field, he had seen the three persons sitting at the culvert. That, about 5 or 10 minutes thereafter he heard the cry of`Mare re Mare re'. That, he rushed towards that place and saw Premraj being given a beating with stones and sticks. On his reaching there, the assailants took to heels. The distance between the culvert and the field of the witness according to him was 100 paundas. He has not stated about the distance from which he had seen the three persons sitting on the culvert that day. On his reaching there, the assailants took to heels. The distance between the culvert and the field of the witness according to him was 100 paundas. He has not stated about the distance from which he had seen the three persons sitting on the culvert that day. He admitted that by remaining in his field persons sitting on the culvert could not be visible because of the obstruction created by the fencing of the field. He deposed that he had not stated before the police about his seeing the incident from distance of 100 feet, rather he had stated about that distance being 100 paundas. This distance comes to 500 feet. He admitted that the assailants had taken to heels prior to his reaching to site. He could not say which of the assailant had stick in his hand. The capacity of the witness to identify the persons running away at a distance would be discussed along with the infirmities pointed out by the prosecution in conducting the parade. It may be noted here that it is not Bhura Ram alone who had stated about the accused being showing prior to the identification parade, rather Pukhraj (PW 10) has also stated that when he was at the police station, three or four persons of village Jhunta were sitting there and police had pointed-out Gordhan and Guman Singh accused to them. 18. The contention of the learned Public Prosecutor is that even if other witnesses to the identification are not believed, still there is no reason to disbelieve the evidence of the injured Premraj who had an occasion to see the assailants from near at the time of the occurrence as well as on the previous night. 19. Premraj has stated that on 23-11-73 at about 9.30 P.M. he had gone to ease himself. That, while returning he saw the three appellants on the Chabutri of Dakhu and on inquiry, they told that they belonged to village Bilada and had come to `Binja Bhambi'. That, on his opening the shop they purchased bidies from him and went away from there. That, on the next day at about 10 PM when he was going to his field, Harji inquired of him as to where he was going and he replied that he was going to the well. That, on his opening the shop they purchased bidies from him and went away from there. That, on the next day at about 10 PM when he was going to his field, Harji inquired of him as to where he was going and he replied that he was going to the well. That, the three appellants were sitting there at the culvert on the way from pali to Beawar. Guman Singh was having a stick with him at the time. The witness then described the way in which he was given a beating. 20. It is pertinent to note that neither Dhaka has been examined to substantiate the contention whether the appellants were sitting on his Chabutari on the day previous to the occurrence nor Binja Bhambs, at whose house they are said to have stayed was produced in the witness box. It is also evident from the statement of Premraj that it was a dark night when he had seen the appellants on the previous day and it was only in the light of a lantern burning inside the shop that he could see the purchasers of the bidies. The learned counsel for the appellant strenuously contended that where as the idea behind the test identification parade is to ascertain as to who actually the assailants were the identification parade in the present case suffers from grave infirmities so as to throw about on the testimony of the witnesses to the identification of Gordhan and Babu. 21. The first shortcoming pointed out by the learned counsel is that the learned Magistrate did not faith fully record the steps taken by him in conducting the identification parade. That only five persons were mixed with the two accused at the parade and the names, addresses and description of the persons so mixed were not mentioned in the memo, It has also been stressed that the learned Magistrate did not mention in the memo the step taken to counsel the scare on the fact of Gordhan in order to show that the clear dissimilarity was not visible to the witnesses to the parade. The arguments have been substantiated by the principle enunciated in the case of Samundra Singh v. State, 1952 R.L.W. 187 . The arguments have been substantiated by the principle enunciated in the case of Samundra Singh v. State, 1952 R.L.W. 187 . wherein the recording of the steps taken at the parade by the Magistrate has been emphasised for the reason that it is not very easy to believe that after a lapse of a year or so, a Magistrate before whom identification parade took place could say from his memory that he took a certain kind of prosecution, which is not noted in his proceedings. The learned S.D.M. conducting the identification in the case has stated that there was a scar on the face of Gordhan over which his hair were spread. According to the witnesses the hair of other witnesses were also got spread in the like manner. He admitted that this has not been mentioned in the memo. He also admitted that only one parade was held for both the accused. He could not tell the age, caste, height etc. of the persons mixed with the accused at, the parade. He also could not say what type of dresses the persons so mixed were wearing. 22. In the case of Yeshwant & Ors. v. The State of Maharashtra, 1972 S.C.C. (Cr.) 684 . the identification parade was considered to be infirm for the reason that in a test identification parade of a man with beard, with a tape in neck, only one out of the five mixed at the parade was having a beard. 23. It may be observed that the learned S.D.M, has not taken care to mix the accused with sufficient number of other persons and the ratio of 2:5 is inadequate. 24. The most rigorous criticism levelled against the identification parade is the delay in conducting the parade. The evidentiary value of an identification parade conducted immediately after the arrest of the accused cannot be over emphasized. The reason is that it leaves little room for doubt that the suspects were deliberately shown to the witnesses or they had an opportunity to see them prior to the identification parade. 25. In the case of Rameshwar Singh v. State of Jammu & Kashmir, A.I.R. 1972 S.C. 102 . The reason is that it leaves little room for doubt that the suspects were deliberately shown to the witnesses or they had an opportunity to see them prior to the identification parade. 25. In the case of Rameshwar Singh v. State of Jammu & Kashmir, A.I.R. 1972 S.C. 102 . their Lordships were pleased to serve that where the accused person is not known previously to the occurrence to the witness identifying the accused at the trial, the identification of the accused by such witness, soon after the former's arrest is of vital importance in the interest of justice and fair play both to the accused and the prosecution. 26. In the case of Pritam Singh and Another v. The State of Rajasthan, A.I.R. 1971 (Raj.) 184 . the accused were put for identification parade 11 days after their arrest and no convicting explanation came forth as to why so much time was allowed to pass between the arrest of the accused and the identification proceedings, The identification proceedings were therefore not held to be proper. The unexplained delay in conducting the identification parade after 24 days of the arrest of the accused in the case of Ganga Singh v. The State of Rajasthan, 1977 R.L.W. 178 . was considered to be bad and the identification evidence was not accepted. 27. In the case on hand, the identification parade of the accused was conducted after 26 days and no proper explanation is coming forth the prosecution side regarding that delay. In such circumstances this delay coupled with other infirmities of the parade discussed above leads to the conclusion that the identification evidence cannot be pressed into service so far as Gordhan is concerned. The argument of the learned Public Prosecutor that despite all these short comings the conviction of Gordhan is justified because the identification was by the victim himself is not appealing. The statement of the witness is itself is not inspiring confidence. He cannot be said to be a witness of un-impeachable credit. In this concern, reference may be made to certain inconsistencies in the statement of the witness at the trial and his previous statement. At the trial he had stated about Harji having a talk with him,prior to his leaving the field in morning of the occurrence asking him where was he going. In his police statement Ex. In this concern, reference may be made to certain inconsistencies in the statement of the witness at the trial and his previous statement. At the trial he had stated about Harji having a talk with him,prior to his leaving the field in morning of the occurrence asking him where was he going. In his police statement Ex. D. 2 to which his attention was drawn, he has not stated so. This fact appears to have been introduced in order to substantiate the prosecution case regarding the conspiracy. It is pertinent to note that the witness has come up with a case that Gordhan was having a knife and Guman Singh a lathi at the time of the occurrence and they have used their respective weapons to cause injuries to him. For Babu, the contention of the witness is that he inflicted the fist blows and threw stones towards him. Attention of the witness was drawn to his statement Ex.D. 3, meant to be a dying declaration at the time, wherein he has stated about one assailant having an axe and two having lathies with them. In this view of the matter, there being no evidence except the identification of the accused Gordhan at the parade and that too in the circumstances discussed above, his conviction cannot be sustained. 28. The case of Babu stands on a different footing. There is of course the infirmity of holding the identification parade with delay and mixing inadequate number of persons at the parade, still the fact cannot be overlooked, that there is no evidence to suggest that he was also shown to the witnesses prior to the identification parade. Bhura (P.W.6) has of course stated about the accused having been shown to him prior to the identification parade but that in itself will not be suggestive that it was Babu also whom the witness had seen. So far as Pukhraj (P.W. 10) is concerned, he has only stated about Gordhan and Guman Singh being pointed out to the villagers of Jhunta at the police station. Had there been only the evidence of identification against the appellant Babu, there would have been some hesitation in placing reliance on the prosecution case against him, but there is a very strong circumstance of the golden chain of the victim Prem Raj from the possession of this appellant in pursuance of the information furnished by him. Had there been only the evidence of identification against the appellant Babu, there would have been some hesitation in placing reliance on the prosecution case against him, but there is a very strong circumstance of the golden chain of the victim Prem Raj from the possession of this appellant in pursuance of the information furnished by him. The recovery part has been proved by the SHO. and the motbir of the recovery memo P.W. 17 Asu. It is noteworthy that the appellant Babu has also not disputed the fact of giving the golden chain to the police from his house. He has of course stated that the chain belonged to his brother Pukhraj. It is pertinent to note that Pukh raj has not been produced in evidence to substantiate this defence plea. In these circumstances the evidence of Premraj about identification of golden chain,having the identification mark of the locket bearing portrait of Lord Krishna on it, is a strong piece of evidence against appellant Babu. There is force in the a argument of the learned public prosecutor that Prem Raj must have better opportunity to see this accused from near at the time of his snatching the chain from his neck. The conclusion therefore would be that there was every justification for the learned trial Judge in holding Babu guilty. 29. The next question emerging for determination would be whether the conviction of the appellant Babu for the offence under section 307 read with section 34 l.P.C. and 394 I P C. is justified or he should be held guilty for some other offence. 30. Mr. Choudhary. learned counsel for the appellants contended that the nature of the injuries and the weapons used do not so indicate the intention of the assailants to attempt to commit the murder of Prem Raj. 31. Controverting these contentions, the learned Public Prosecutor submitted, that, there were 14 injuries on the person of Premraj, out of which as many as 5 were incised wounds and in the opinion of the Doctor injury No. 1 to 5 over the head could have caused death, meaning thereby that they were sufficient to cause death. The doctor has further observed that injury No. 3 by itself were sufficient to cause death. The doctor has further observed that injury No. 3 by itself were sufficient to cause death. The learned Public Prosecutor also referred to the statement of the doctor that the patient was discharged from the hospital on 20th December, 1973 and during that period he was unable to follow his regular per suits of life. The learned Public Prosecutor submitted that the injured has also stated about his being incapacitated to follow his regular per suits of life for the period he remained in the hospital. In this view of the matter, I find strength in the argument of the learned Public Prosecutor that the nature of the injuries sustained by the victim and act of the assailants to throw him in the pit, causing his unconsciousness should lead to the irresistible conclusion that the intention was to commit the murder. The question would still remain to be answered as to whether Babu appellant against whom there is allegation of only inflicting fist blow and throwing stones towards the victim could be attributed with the intention of knowledge that death could possible be caused by his act or the acts of his companions. 32. It is not a case of sudden quarrel in which the participants may be held guilty only for their own acts As the circumstances indicate, the assailants, whosoever they might be, had a plan in their mind to deal with the victim. If with such an idea and intention in their mind any one of them had caused grievous injuries to the victim, each of them shall be held guilty for the offence committed by any of them with the help of Section 34 IPC because of their preconcert and community of mind. The conviction of the appellant Babu for the offence under Section 307 read with Section 34 IPC therefore requires no interference. 33. Babu has also been convicted and punished under Section 394 IPC for voluntarily causing hurt in committing robbery. The conviction of the appellant Babu for the offence under Section 307 read with Section 34 IPC therefore requires no interference. 33. Babu has also been convicted and punished under Section 394 IPC for voluntarily causing hurt in committing robbery. Section 390 IPC defines robbery as under: "Theft is "robbery" if, in order to the committing of the theft or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt, or wrongful restraint, or fear of instant death or of instant wrongful restraint." The facts and circumstances of the case do not suggest that the assailants caused injuries with an Idea of committing the theft so as to bring the case within the ambit of the above definition. As the statement of Premraj himself indicates the assailants caused injuries to him and then one of them, meaning thereby appellant Babu, snatched his golden chain from his neck. In the absence of any specific evidence about the accused voluntarily causing injuries for committing theft, the ingredients of the offence of robbery can not be said to be made out. 34. In the case of Kozhipalliyalli Muhammed v. State, 1974 Cr. L.J. 204 . removal of the ornaments from the body of the victim after inflicting fatal injuries was not considered to be a case in which ingredients of offence of Section 394 could be proved. 35. In the case of Abdul Rashid and Others v. Nausher Ali, 1979 Cr. L.J. 1158 . it was observed that for transformation of an offence of theft to one under robbery, it has to satisfy the requirement of S. 390 IPC. Discussing the essence of the offence of robbery it was further observed that the use of violence will not, therefore, ipso facto convert the offence of theft into robbery unless the violence is committed for one of ends specified in Section 390 IPC. 36. The appellant Babu can therefore be held guilty only for the offence under Section 379 IPC. Discussing the essence of the offence of robbery it was further observed that the use of violence will not, therefore, ipso facto convert the offence of theft into robbery unless the violence is committed for one of ends specified in Section 390 IPC. 36. The appellant Babu can therefore be held guilty only for the offence under Section 379 IPC. It view of the facts and circumstances of the case, that is, the young age of the appellant Babu and his act only being limited to inflicting of fist blows and throwing stones to the victim, I am of the opinion, that a lenient view is called for so far as the sentence awarded to him is concerned. 37. Consequently, the appeals filed by appellants Guman Singh and Gordhan are acquitted of the charges levelled against them. They are on bail and need not surrender to it Their bail bonds stand discharged. The appeal of appellant Babu is partly allowed. His conviction for the offence under section 307 IPC read with Section 34 IPC in maintained but the sentence awarded to him is reduced to one year's rigorous imprisonment and a fine of Rs. 200/-, in default to undergo three months rigorous imprisonment The conviction of appellant Babu for the offence under Section 394 IPC is converted to one under Section 379 IPC and he is sentenced to one year's rigorous imprisonment and a fine of Rs. 200/-, in default to under go three months rigorous imprisonment. The substantive sentences for both the counts shall run concurrently. The Chief Judicial Magistrate Pali, is directed to effect the arrest of appellant Babu and send him to custody to suffer the sentences awarded to him as stated above.Appeal Allowed. *******