JUDGMENT 1. This is an appeal against the judgment dated June 30, 1980, passed by the learned Add. Sessions Judge, Deeg, wherein he convicted and sentenced the accused-appellants as under : 1. Kadkali 2. Hurmat 3. Sheetal 4. Mangal 5. Chandra Khan ) ) ) ) ) U/S 396, IPC U/s 397/395, IPC Imprisonment for life Seven years' RI & Rs. 2,000/- each as fine, in default two years RI All the sentences were ordered to run concurently. 2. The occurrence of dacoity which was the subject-matter of the charge against the accused-appellants is said to have taken place at the house of Niranjan Lal (PW/4), to whom we shall call as complainant. He gave a written report to the Police Station, Sikari on 18-2-1977, at 6.00 a. m., which is marked as Ex. P/12. In this report, it was mentioned that the dacoity was committed on the intervenes night of 17th and 18th February, 1977, nearly at 10 or 10.30 p. m. The dacoits were armed with guns, sabbal, axes and lathis. Badri Prasad, Devi Prasad, Roopwati and Parwati were given beating during the course of dacoity. Hearing the noise Shyam Lai Vaisya rushed from his house towards the place where the dacoity was being committed. At that stage, one of the dacoits fired a shot hitting Shyam Lal sum-mbed to the injuries. The complainant was sleeping in his shop. The dacoits broke pen the doors and thereafter inflicted injuries on his person as well as on the person of Damodar and Kishori Jatav. The dacoits remained in the Haweli nearly for no hours. After the dacoits had left the place the villagers gathered there and took In injured persons to the hospital. As the marriage was taking place in the house of in complainant, the dacoits fled away with gold and silver ornaments. On the basis this report, a regular FIR Ex. P 22 was drawn. The Investigating Officer reached like scene of occurrence and prepared site-plan Ex. P/14. He recorded the statement of the witnesses. He also prepared inquest report Ex. P/24 regarding Shyam Lal (since deceased). Post mortem was performed on the dead body of Shyam Lai by Civil Surgeon, Nagar. The postmortem report is Ex. P/3. Parwati, Devi Prasad, Badri Prasad, Kishori and Damodar were clinically examined and injuries were noted on their person. Their injury reports are Ex. P/4, Ex. P 5, Ex. P/24 regarding Shyam Lal (since deceased). Post mortem was performed on the dead body of Shyam Lai by Civil Surgeon, Nagar. The postmortem report is Ex. P/3. Parwati, Devi Prasad, Badri Prasad, Kishori and Damodar were clinically examined and injuries were noted on their person. Their injury reports are Ex. P/4, Ex. P 5, Ex. P/6, and Ex. P/8 respectively. The accused persons could not be arrested for a pretty long time. Hurmat was arrested on 17-9-1977 and Sheetal was also arrested on the same day. Accused Mangal was arrested on 10-12-1977. Kadkali and Chandra Khan were barrelled on 2-11-1978. Test identification parades were held on 24-9-1977, which is Ex. ID/5. Accused Hurmat and Sheetal were got identified in the test identification parade by the witnesses. Hurmat was identified by PW/2 Damodar, PW/4 Niranjan Lal and PW/7 Mool Chand, where is Sheetal was identified by PW/9 Damodar and PW/7 Mool Chand. Identification memo is Ex. D/5. A test identification parade was held regarding the above mentioned accused persons under the supervision of PW/9 B. C. \Kulshrestha, Munsiff Magistrate, Deeg. The test identification of Mangal was held on 13-7-1977. He was identified by PW/2 Damodar, PW/4 Niranjan and PW/7 Mool Chand. The test identification parade of Kadkali and Chandra Khan was held on 6-11-1978. They were identified by PW/1 Badri Prasad PW/2, Damodar and PW/7 Mool Chand. This parade was held under the supervision of PW/15 Himmat Singh, Addl. Munsiff & Judicial Magistrate, Bharatpur. Identification of Mangal was held under the supervision of PW/13 Padam Kumar Jain. Addl. Munsiff, whereas the identification of Kadkali and Chandra Khan was held by PW/15 Himmat Singh, Addl. Munsiff & Judicial Magittrate No. 2, Bharatpur. Their test identification memo are Ex. P/28, Ex. P/31 and Ex. P/32 respectively. 3. The Police after usual investigation submitted challan against all the three accused under Sections 325, 396 and 397, IPC. They were committed to the Court of Session and were ultimately tried by the learned Addl. Sessions Judge, Deeg. They were found guilty of the above mentioned charges. 4. Mr. Syed Manzoor Ali, learned counsel appearing on behalf of Hurmat, and Sheetal, has vehemently challenged the validity of the test identification parade I as well as the reliability of the witnesses identifying these two accused persons. Sessions Judge, Deeg. They were found guilty of the above mentioned charges. 4. Mr. Syed Manzoor Ali, learned counsel appearing on behalf of Hurmat, and Sheetal, has vehemently challenged the validity of the test identification parade I as well as the reliability of the witnesses identifying these two accused persons. He further submits that there are numerous infirmities in the prosecution case which go to prove that the guilt has not been brought home to the accused appellants, 5. Mangal after arrest expressed his desire to get the dacoity-property recovered. The information given by him was reduced into writing, which is Ex, P. 27, In consequence of the above information, gold and silver ornaments were recovered from the place of there concealment. They were seized and sealed on the spot, vide seizure memos Ex. P. 21 and Ex. P. 33 respectively The test identification parade was held for identification of stolen articles on 20-1-1978 and 30-1-1978, which have been marked as Ex. P. 1 and Ex. P. 2 respectively. 6. As regards the rest of the accused, ;e are not required to deal with in detail the circumstances brought on record as the learned counsel for the accused-appellant Mr. A. K. Gupta, keeping in view the preponderance of evidence on record has rightly conceded that he does not challenge their conviction under Sections 397 and 395, IPC. His main contention is that none of the accused could be convicted under Section 396, IPC. However, after having gone through the entire record, we are satisfied that the learned counsel is correct in his assessment to at the case under Section 395, IPC against the accused-appellants, Mangal, Chandra Khan and Kadkali stands proved beyond any doubt by cogent, reliable and consistent evidence The learned Public Prosecutor has supported the judgment of the Court below. 7. The first and foremost question which needs to be determined is whether there is any reliable evidence to hold that Shyam Lal (since deceased) was actually shot at by one of the dacoits during the course of commission of the offence. A perusal of Ex. P. 14 and the statement of the Investigating Officer, Shri Sarvottam Nath (PW 11) shows that the dead body of Shyam Lal was found at point `gate marked in Ex. P/14, which is at a pretty long distance from the house of Niranjan Lal. A perusal of Ex. P. 14 and the statement of the Investigating Officer, Shri Sarvottam Nath (PW 11) shows that the dead body of Shyam Lal was found at point `gate marked in Ex. P/14, which is at a pretty long distance from the house of Niranjan Lal. A perusal of FIR shows that Shyam Lal after hearing the noise ran from bis house to the Haweli where the dacoity was being committed and at that stage one of the dacoit was standing out side the house of Shyam Lal, whereas a perusal of Ex. P. 14 shows that no marks of blood or the pellets was found nearby. PW 11 Sarvottam Nath has stated that Ex. P. 14 was prepared by him and the facts mentioned there in were written by him and were in accordance with the facts existing on the spot. PW/4 Nirajan Lal stated that the Bhakti for preparation of sweets was working in the ora, which is situated near the shop where he was lying for rest. He further admits that confectioners were also working there. We find considerable merit in the argument advanced by the learned counsel for the accused-appellants, and we find that on the basis of vacillating statement it cannot be said with certainty that Shyam Lal was shot at by one of the dacoit's who entered into the house of Niranajan Lal. On this point we stand supported by the observation of their Lordship of the Supreme Court in Vakil Singh & Ors. v. State of Bihar ( AIR 1981 SC 1392 ) , 8. Now, we will deal with the case of each of the accused-appellants. There is no evidence regarding the recovery of the stolen article against any of the accused j except Mangal. Admittedly, no incriminating article was recovered from the possession ot Hurmat. His conviction is based on the testimony of two witnesses, Niranjan (PW/4) and Moolchand (PW 7) who identified him in the test identification parade, as well as in the Court as one of the dacoits. A perusal of the identification state before the learned Magistrate, under whose supervision identification parade was conducted, that, Hurmat was known to him from before. While making statement before the Court the witness was confronted with the above statement. Instead of explaining the contradictions appearing in Ex. A perusal of the identification state before the learned Magistrate, under whose supervision identification parade was conducted, that, Hurmat was known to him from before. While making statement before the Court the witness was confronted with the above statement. Instead of explaining the contradictions appearing in Ex. D/5, the witness had the audacity to state that he did not make such a statement before the learned magistrate. PW 6 Shri B. C. Kulshrestha admitted that prior to identification Niranjan Lal told him that Hurmat was known to him crime before and he correctly state this in Column 10 of Ex. D. 5. Niranjan Lal is the author of the FIR. He knew Hurmat and, as such, if Hurmat would have been one of the decorum he would have named him in the FIR. or if he escaped to mention the name, then at least he would have named him in his police statement. Omission of the name of this accused in the statement before the police as well as in the FIR creates doubt about the fact that Niranjan Lal correctly identified Humrat as one of the miscreants. 9. Now remains the statement of Moolchand (PW 7). PW 7 Moolchand stated in the Court that he saw the accused person first in their Haweli and thereafter he came to his shop where his son was sleeping, closed the doors and watched the movement of the dacoits through the holes created by the cracks He was confronted with his police statement Ex. D. 7 wherein he did not mention that he had seen the accused from the Haweli. This statement in the court has been made - with some purpose. It is not an innocent statement. The purpose behind such improvement was to state before the Court that he had sufficient opportunity to identify the miscreants from the roof as he saw from the roof of the Haweli. Watching the miscreants from the brakes of the doors is a difficult job specially when the shop is situated neary 35' away. The accused has not come inclose contact with the witness. Moolchand suffered no injury at the hands of the accused, nor Hurmat entered the shop where he was lying. Watching the miscreants from the brakes of the doors is a difficult job specially when the shop is situated neary 35' away. The accused has not come inclose contact with the witness. Moolchand suffered no injury at the hands of the accused, nor Hurmat entered the shop where he was lying. As such, taking a conspectus of the circumstances of the case, it will not not be safe to maintain the conviction of accused Hurmat on a scant evidence of identification of such a person. 10. Now, we take up the case of accused Sheetal. He was identified by Mool. chand and Damodar. Moolchand was disbelieved by the learned Addl. Sessions I Judge regarding the identification of Hurmat and Sheetal on the ground that he did I not come in contact with any of these two accused persons. According to his own statement. beating was administered to him in his own shop by Mangal, Chandra Khan. and Kadkali and thereafter he was dragged to the chabutara where he fell unconscious. As such, he had no opportunity to identify either Hurmat or Sheetal. We do not find any infirmity in the above noted appreciation of evidence by the learned Addl. Sessions Judge. There are no compelling reasons to reverse the finding of fact arrived at by the learned Addl. Sessions Judge. 11. Now, remains the statement of Mool Chand, whose statement has not been relied upon by us regarding Hurmat. Similar reasons apply to the case of Sheetal. 12. The result of the above discussions is that the conviction and sentence awarded to accused Hurmat son of Naru and Sheetal son of Nawaz Khan by the trial Court are set aside. They are on bail. They need not surrender to their bail I bonds. 13. Conviction and sentence awarded to accused Mangal and Chandra Khan son of Nawaz Khan and Kadkali son of Hasmi under Section 396 IPC are set aside. Their conviction under Sections 397 and 395, IPC is maintained. The sentence awarded to them is reduced to seven years' rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine each of the accused will suffer seven days imprisonment. The substantive sentence awarded to each of them on each count is ordered to run concurrently. 14. It is, however, made clear that the accused appellants shall be entitled to the J benefit of Section 428, Cr. 100/-, in default of payment of fine each of the accused will suffer seven days imprisonment. The substantive sentence awarded to each of them on each count is ordered to run concurrently. 14. It is, however, made clear that the accused appellants shall be entitled to the J benefit of Section 428, Cr. P.C. The term of imprisonment suffered by them during investigation, inquiry or trial shall be set off against the term of sentence awarded by this Court. *******