Judgment Prabha Shanker Mishra, J. 1. Out of eight accused persons put on trial for the offence Under Sec.396 of the Indian Penal Code (for short I. P. C) two have been convicted. They have appealed against their conviction and imposition of sentence. 2. In the night between 18/19th March, 1980 a dacoity was committed in the house of Surajbans Singh (P.W. 7) of village Parsa, police-station Obra district Aurangabad. One Sarvesh Singh a co-villager was killed in the said dacoity. Suraj Bansh Singh (informant) along with his son Binod, nephew Uday Kumar, Ajoy Kumar and Mahadeo Singh was sleeping in the baithaka. At about mid-night he heard some sound and woke up. He found three dacoits near the exit door of his house. The dacoits came near him and surrounded him and Mahadeo Singh. One of them had only one eye. It is alleged that the said one eyed dacoit took search of Mahadeo Singh and took away a sum of Rs. 30 from his possession. Another dacoit opened the main-gate of the house. At that time on hearing the noise Sarvesh Singh came from his house towards the informants house. The appellant Dukhan Ram, it is alleged, said "an enemy has come and to kill him." One of the dacoits on the said shout fired a gun shot at Sarveshar Singh. Sarveshar Singh fell at some distance from the house as a result of the said gun shot injury and succumbed to death. A few villagers assembled there after hearing the noise. The dacoits, however, went away with stolen articles. The one eyed dacoit (appellant Bishnudeo Chamar) took away even the Kurta and shoe of Mahadeo Singh while fleeing away. After the dacoity the informant went into his house and learnt from his brother Deobansh Singh that some dacoits had entered into the house by breaking open the back door. In the information lodged with the police the informant also stated that along with the appellant Bishnudeo Chamar he had seen quite a few other persons in the village on Sunday morning before the day of dacoity. 3. In the eventual trial since other accused persons have been acquitted, every detail of the evidence and defence of the accused persons is not necessary. 3. In the eventual trial since other accused persons have been acquitted, every detail of the evidence and defence of the accused persons is not necessary. Appellant Dukhan Ram is a co-villager and his name was mentioned as one who had entered into the Baithaka along with other one eyed dacoit (Bishundeo Chamar). The other dacoit was described in the information as a person having only one eye. When clues became available later on during the investigation the police searched for appellant-Bishun-deo Chamar and ultimately on 10-5-1980 requisitioned for necessary process for apprehending him. He was taken in custody and forwarded to jail on 26-10-1980. On 1-11-1980 he was put on test identification parade. In the said test identification parade he was identified as the said one eyed dacoit, by P. Ws. 6, 8, 9 and 10, namely, Devbansh Singh the informants brother, Binod Kumar Singh the informants nephew. Ana Devi wife of Binod Kumar Singh and P.W. 10 Suresh Nani Devi wife of Ramballabh Singh (another son of the informant Surajbansh Singh). 4. The appellants have denied the participation in the occurrence. Appellant Dukhan Ram has suggested that he has been falsely implicated on account of pre-existing enmity between the Rajputs of the village on the one hand and Chamars on the other hand. Appellant Bishundeo Chamar, who of course is not a co-villager, has also suggested that he has been falsely implicated on account of the said enmity and his identification parade was contrived to create evidence against him. 5. learned Counsel for the appellants has generally questioned the factum of dacoity and also submitted that in any event on the facts proved by the prosecution evidence Sarvesh Singh was murdered in course of the commission of the dacoity. He has accordingly submitted that conviction of the appellants Under Sec.396, IPC is not sustainable. learned Counsel for the appellants has also submitted that the evidence that Sarvesh Singh was killed by one of the dacoits on the orders of appellant Dukhan Ram is not established and thus there is no legal and reliable evidence for sustaining conviction of either of the appellants for the said offence. He has also argued separately with reference to the evidence on the record about the complicity of the appellant No. 1 and that of the appellant No. 2. 6. He has also argued separately with reference to the evidence on the record about the complicity of the appellant No. 1 and that of the appellant No. 2. 6. It is, however, difficult to yield to the contention of the learned Counsel for the appellants that there is no evidence to establish that dacoity was committed in the house of the informant or that Sarvesh Singh was not killed during the dacoity. The evidence about the commission of the dacoity in the house of the informant is overwhelming and there can hardly be any scope for not accepting the case of the prosecution to the said effect. Besides, the evidence of the informant. P. Ws. 1, 2, 4, 5, 6, 8, 9, 10 and 13 have supported the prosecution case about the commission of dacoity in the house of the informant. The investigating officer (P.W. 11) had also seen one door plank of the backdoor of the house of the informant broken. The witnesses have said that the dacoits, who were variously armed and were also carrying fire-arms, had entered into the house of the informant. There is overwhelming evidence that when Sarvesh Singh came towards the house of the informant and was at a short distance therefrom appellant Dukhan Ram shouted and one of the dacoits fired a gun shot at him. Sarvesh Singh staggered to a distance from the house but fall down due to the said gun shot injury and died. Dr. S. Kumar (P.W. 14) who was the Civil Assistant Surgeon at Sadar Hospital, Aurangabad and held postmortem examination on 19-3-1980, has testified to the fact and proved the postmortem examination report saying that Sarvesh Singh had sustained gun shot injuries round about the time of occurrence. It is also not possible to say that Sarvesh Singh was not killed in course of the commission of the dacoity. 7. Sec.396 of the Indian Penal Code says: If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 7. Sec.396 of the Indian Penal Code says: If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. The clue to attract Sec.396, IPC is available firstly in the words any one of five or more persons who are conjointly committing dacoity; and secondly in the words commits murder in so committing dacoity. An unlawful assembly which is ready with deadly weapons to use force in committing theft shall attract the provision in Sec.395, IPC If any one of the said unlawful assembly is found to have used a gun and hit any other person in committing dacoity, his act of hitting some body by a gun shot in these circumstances shall always be with the knowledge that his act of assaulting by a gun shot shall result in the death of that person. By doing such an act that member of the assembly shall undoubtedly be committing murder and thus shall be inviting the application of Sec.396, IPC against every member of the said unlawful assembly. On the facts of this case when, besides the appellants, there were more miscreants who had participated in the dacoity and their number according to the prosecution witnesses was more than five, they constituted an unlawful assembly and since more than five persons were involved in the commission of the dacoity and while conjointly committing dacoity one of them committed murder, Section 96, IPC is, in our view, attracted. 8 learned Counsel for the appellants has, however, placed reliance upon the following facts to contend that appellant No. 1 has been falsely implicated and/or in any event he deserves the benefit of doubt. According to the learned Counsel there being sufficient evidence on the record that the appellant No. 1 is a co-villager of the informant and there has been pre-existing enmity between the two castes and there has been tense feeling in existence, the fact that appellant No. 1 is not alleged to have disguised himself or covered his face assumes relevance. According to the learned Counsel there being sufficient evidence on the record that the appellant No. 1 is a co-villager of the informant and there has been pre-existing enmity between the two castes and there has been tense feeling in existence, the fact that appellant No. 1 is not alleged to have disguised himself or covered his face assumes relevance. According to the learned Counsel a co-villager is not expected to commit dacoity without disguising himself and since enmity is admitted, there is always the chance of the informant and witnesses belonging to the rival community falsely implicating himself. Coupled with it is the fact that the night in which the occurrence took place was not a moon-lit night and with the exception of alleging that the accused persons were flashing torchlight no means of identification has been either suggested or proved by the prosecution witnesses. In such circumstances, the informant could hardly identify the appellant No. 1 in the Baithaka and any other witnesses claiming that he identified the appellant has only done so due to pre-existing enmity. The appellant-Dukhan Ram has been named in the first information report. P.W. 7 has testified that he identified him when he along with another dacoit came into Baithaka and surrounded him and Mahadeo Singh. He has also stated that when Sarvesh was spotted, appellant Dukhan Ram shouted and exhorted to kill him and following his command Anr. dacoit fired at Sarvesh Singh. In his testimony P.W. 7 in the court has remained unshaken on this point. His evidence on this is corroborated by the occular testimony of P. Ws. I, 2, 5 and 13. P.W.I, who was according to his deposition, sleeping in the Khalihan, came after hearing the cry of dacoit and the sound of the firing of guns he saw Sarvesh coming with a torch and appellant Dukhan exhorting to kill. He has remained unshaken on this and has proved the fact that appellant Dukhan was one of the dacoits. P.W. 2 has also deposed to the same effect and testified that he identified appellant Dukhan Ram as one of the dacoits. P.W. 5 and P.W. 13 have also deposed to the same effect. He has remained unshaken on this and has proved the fact that appellant Dukhan was one of the dacoits. P.W. 2 has also deposed to the same effect and testified that he identified appellant Dukhan Ram as one of the dacoits. P.W. 5 and P.W. 13 have also deposed to the same effect. Amongst them, however, it is said about the P. W- 1 that he had not made any such statement that he had seen Sarvesh coming towards the house of the informant and/or seen Dukhan Ram and identified him as one who had exhorted the dacoits to kill Sarvesh before the police. Except, however, the said infirmity in the evidence of P.W. 1 there is no other material contradiction in the testimony of the said four prosecution witnesses about the identification of appellant Dukhan as one of the dacoits. learned Counsel for the appellants has commented on the testimony of these and other prosecution witnesses to suggest that it is somewhat unnatural to say that Sarvesh as also appel- lant Dukhan Ram were seen by the witnesses who arrived after hearing the cry of dacoit, dacoit and the sound of gun shot fired. They in all probability arrived after some one had fired at Sarvesh Singh and due to enmity they decided to depose against appellant Dukhan Ram. He has also suggested that the informant, who was surrounded in the Baithaka, could not see Sarvesh who had not yet entered into the Baithaka of the house and his testimony to the said effect is not reliable. learned Counsel has also suggested that there is some evidence that Sarvesh Singh was killed after the dacoity was committed, inasmuch as, P.W. 7 (informant) has himself said that he saw Sarvesh Singh after the occurrence. It is, however, worth noticing that P. Ws. 1, 2, 5 and 14 have all deposed that they arrived before Sarvesh Singh arrived simultaneously there and they were nearby when Dukhan shouted and Anr. dacoity fired at Sarvesh Singh. It is, however, worth noticing that P. Ws. 1, 2, 5 and 14 have all deposed that they arrived before Sarvesh Singh arrived simultaneously there and they were nearby when Dukhan shouted and Anr. dacoity fired at Sarvesh Singh. In the cross-examination of P.W. 7 and similarly in the cross-examination of other witnesses an attempt has been made to show that Sarvesh was not so placed that any assault on him could have been seen by any one of them and/or that the informant has deliberately lied in saying that he saw Sarvesh coming towards the house and heard the appellant Dukhan Ram shouting and at his commands another dacoit fired at Sarvesh. 9. A closure look to the evidence, however, clearly shows that nothing that has been said by the aforesaid witnesses including P.W. 7 (informant) is in any way inconsistent with their deposit on that they saw Sarvesh being attacked and killed. There is, no doubt, evidence to show that the night in which the dacoity was committed was a dark night and it appears that apart from saying that accused persons were flashing their torches and Sarvesh had arrived with a torch, the prosecution witnesses have not said about any other means of identification. At the same time, however, it has to be noticed that the defence has not questioned the identification by the prosecution witnesses on account of absence of any means of identification and since no witnesses has been asked about the means of identification, the prosecution has rested at the statement of the prosecution witnesses that accused persons were flashing their torches and that Sarvesh Singh had arrived with a torch. Absence of any means of identification assumes relevance only when such absence is established after giving opportunity to the prosecution witnesses to disclose the source of identification. When a witness deposes about his identifying a certain object or a person, it is for the party seeking to destroy that evidence to show that the claim of the witness is not trustworthy. The fact that the appellant No. 1 is a co-villager or that there was some enmity between Rajputs on the one hand and Chamars on the other hand and even the fact that the appellant No. 1 had made no attempt to disguise himself are of no consequence at least for doubting the testimony of P. Ws. The fact that the appellant No. 1 is a co-villager or that there was some enmity between Rajputs on the one hand and Chamars on the other hand and even the fact that the appellant No. 1 had made no attempt to disguise himself are of no consequence at least for doubting the testimony of P. Ws. 1, 2, 5 and 13 and that of P.W. 7 (informant) about the identification of the appellant No. 1 as the one of the dacoits. Even a cautious approach warranted on the facts of this case takes us no further than showing that these witnesses saw the appellant No. 1 amongst dacoits and identified him. Why being a co-villager the appellant No. 1 did not disguise himself, cannot be found in the evidence of the prosecution witnesses. Enmity cuts both ways. That there was some light is proved by the evidence of the prosecution, the defence has not tested their veracity about the presence or absence of the means and the source of light in which they identified the appellant No. 1. Their evidence for the said reason, in our view cannot be discarded. 10. Coming to the case of the appellant No. 2 one has to notice that a dacoit was identified by reason of his being only having one eye. A test identification parade in such a situation was the only proper course to ascertain whether the investigation was proceeding on the right lines or not and the police had rightly apprehended the appellant No. 2 or not. Appellant No. 2 was apprehended on 26-10-1980 and on 1-11-1980 he was put on test identification parade. P. Ws. 6, 8, 9 and 10 participated in the parade held on the said date. They identified him amongst several persons (8-9 as is given in the; evidence) in the test identification parade. Amongst them P. Ws. 9 and 10 are pardanashin women who had no interest but to identify the culprit who had committed dacoity in their house. Even P.W. 6 and P.W. 8 cannot be said to have any animus to identify the appellant No. 2 in the test identification parade. P. Ws. 6, 8, 9 and 10 have also identified the appellant No. 2 in the court. Even P.W. 6 and P.W. 8 cannot be said to have any animus to identify the appellant No. 2 in the test identification parade. P. Ws. 6, 8, 9 and 10 have also identified the appellant No. 2 in the court. It is well settled that legal evidence is the evidence of identification in the court and the identification in the test identification parade is only of corroborative value. The dual purpose of the test identification parade pointed out by the courts is to give assurance on the one hand to the investigation that it is proceeding on the right lines and on the other hand to the evidence of identification of the accused in the court to test the veracity of the witnes es identifying the accused. 11. Learned Counsel however, has drawn our attention to the judgment of the Supreme Court in the case of Bali Ahir V/s. State of Bihar -- . He has submitted that no reliance should be placed upon the evidence of such witnesses who came to identify the accused after having seen him or having opportunity to see him before their coming to participate in the test identification parade. In Bali Ahirs case it has to be noticed that the accused belonged to the neighbouring village at a distance of less than a mile from the police quarter and the scene of the occurrence. The witnesses were all police officials who had claimed that they had seen the accused from behind while escaping. The victim of the offence knew at least one of the accused from before, yet he did not name him in the first information report and went to identify him in the parade when he fully knew him. In these circumstances, although test identification parade who held after a gap of four days after the arrest, the Supreme Court found fault with the evidence of the prosecution in the absence of any explanation for delay. The law on the subject is well settled. The moment there is any opportunity to the witnesses to see the accused before they identify him in the test identification parade, the identification has to be rejected. The delay in the test identification parade will have relevance in this background and explanation for the delay is essential. The law on the subject is well settled. The moment there is any opportunity to the witnesses to see the accused before they identify him in the test identification parade, the identification has to be rejected. The delay in the test identification parade will have relevance in this background and explanation for the delay is essential. In the case in hand, however, there is nothing to imagine that the witnesses had the opportunity to see the accused before they came to identify him in the test identification parade. The witnesses are all inmates of the house which suffered the dacoity. The appellant No. 2 Bishnudeo Chamar is not a co-villager and was not known to any one of them from before these witnesses were not placed like police officials who could by dint of their office move around and select their accused. The dacoit who was known from before, namely, appellant No. 1 was named by the informant (P.W. 7) in the first information report. There is no material on the record to doubt the veracity of the prosecution case that although the appellant No. 2 was known from before, yet he was not named in the first information report. There is no doubt a delay of about four or five days from the arrest of the appellant in the test identification parade, but in the circumstances of this case the delay is not fatal and is of very little consequences when it is seen in the background that after apprehending the appellant No. 2 and his remand to jail by the court, the prosecution has to obtain necessary order from the court and to arrange test identification parade in jail of a person who was one eyed and thus to mix him at the parade with only one eyed people. It appears that there was no fault committed in the test identification parade and the witnesses identified the appellant No. 2 in the said parade when he had been mixed up with people having one eye only. 12. learned Counsel for the appellants has referred to certain contradictions as to the presence of the Sub-Inspector of Police at the time of the test identification parade or one or the other witnesses excepting that all the witnesses were together ushered into the room in which the parade was held or some one with them followed each other. 12. learned Counsel for the appellants has referred to certain contradictions as to the presence of the Sub-Inspector of Police at the time of the test identification parade or one or the other witnesses excepting that all the witnesses were together ushered into the room in which the parade was held or some one with them followed each other. These, however, are minor contradictions only touching the fringes of the evidence of identification. We are of the view that there is nothing to doubt the testimony of the witnesses who have identified the appellant No. 2 in court. 13. learned Counsel for the appellants has, however, drawn our attention to the fact that neither of the appellants are the assailants of Sarvesh Singh. These two are not said to have fired at Sarvesh. The appellant No. 1 is no doubt described as the order given, but in his case it has to be borne in mind that he is a co-villager and even though the prosecution evidence may not be rejected so far his participation in the dacoity is concerned compassion should be shown to him also in imposing the sentence. About appellant No. 2 it has been said before us that he has suffered incarceration for about five years and has so suffered because he has not been ordered to be released on bail by this Court. After giving careful consideration to the facts and circumstances of the case, we are of the view that for the offence Under Sec.396, I. P. C, a sentence of ten years rigorous imprisonment to the appellants shall serve the ends of justice. 14. In the result, the appeal is dismissed. The conviction of the appellants Under Sec.396, IPC is affirmed but the sentence of life imprisonment is reduced to the rigorous imprisonment for a period often years only.