JUDGMENT 1. - By his judgment dated Nov. 30, 1988, the learned Addl. Sessions Judge, Dausa convicted the three accused Brij Mohan alias Ram Singh Kanjar, Gulla alias Satya Narain Kanjar and Barchia Nutt under sections 396, 397, 450 and 397/149, IPC and sentenced each of them to death under section 396 and to various terms of imprisonment under the remaining sections. He has submitted the proceedings under section 366(i) Cr.PC for confirmation of the death sentence. The convicts have come in appeal and challenge their conviction. We have thus two matters before us viz. (1) the reference for confirmation of the death sentence and (2) the appeal of the three accused. 2. The case relates to a dacoity alleged to have been committed in the night between 11th and 12th October, 1983 in village Baswa P.S. Bandikui District Jaipur in which four persons three gents and one lady were killed and movable properties of huge valuation were looted. 3. Put briefly the prosecution case is that PW 7 Chiranji Lal and the inmates of his family were sleeping in their house in village Baswa in the night between 11th and 12th Oct., 1983. Chiranji Lal was sleeping in the verandah of the house shown by mark 'D' in site plan Ex. P 2. Around 1.00 a.m., he heard the women folk of his family weeping and crying. The ladies, were crying as to who were there and why they were beating them and taking away the property. Chiranji Lal at once got up and came out in the courtyard (chowk). He saw two or three culprits landing blows to Gora (PW 6) and Gulab. Gulab was given a serious beating. She fell down and became unconscious. The culprits also landed blows to him. His brother's wife Saroj (PW 8) came to help him and she too was not spared. Some culprits were,also standing outside the house. One of them fired a gun shot. Mool Chand who was sleeping in an enclosure situate nearby hearing, the gun shot rushed to the house of Chiranji Lal and the culprits made an assault on him with Fersies and lathies. He became unconscious on the spot. Panna Lal whose house is situate nearby also rushed to the spot. He was shot dead when he was on the chabutra of his house. He became unconscious on the spot. Panna Lal whose house is situate nearby also rushed to the spot. He was shot dead when he was on the chabutra of his house. PW 14 Smt. Shakuntla who was sleeping in the house was also assaulted and beaten when she tried to resist the culprits. Bheru Lal Balai whose house is also situate nearby also came out and one of the culprits fired a shot at him causing his death on the spot. The culprits thereafter decamped with tin boxes, suit cases, boxes etc. containing costly clothes, silver and gold ornaments, utensils and currency notes. PW 1 Ram Swroop (brother of PW 7 Chiranji Lal) was sleeping in that night in the fire wood depot. On hearing the gun shot he rushed to his house and saw six or seven persons emerging from it and going towards the 'Nallah' (stream) with bags, attache cases, tin boxes and guns in their hands He proceeded further and found Mool Chand, Panna Lal, Bheru Lal. Smt. Gulab, Smt. Saroj Smt. Gora and Chiranji Lal lying injured on account of the injuries caused by gun shots and other weapons. He immediately rushed to the village police outpost and presented written report Ex.P 1 of the incident at about 2.15 a.m. The Head Constable, Incharge of the police outpost, forwarded it to the concerned Police Station Bandikui registered a case and proceeded with the investigation. S.I. Police Jai Singh (PW 30) arrived on the spot, inspected the site and prepared the site plan. He lifted the control and the blood stained soil from the places of incident. He found the dead body of Panna Lal lying outside in the verandah of his house. He prepared the inquest report of the dead body of Panna Lal. Bheru Lal who was taken to the Government Dispensary, Bendikui was declared dead. The investigating officer prepared his inquest report. Mool Chand and Smt. Gulab were taken to Government Hospital, Alwar. They also did not survive. Mool Chand succumbed to the injuries at about 11.30 a.m. on 12-10-1983. The investigating officer reached there and prepared the inquest reports of their dead bodies. The post mortem examination of the dead bodies of Panna Lal and Bheru Lal was conducted by PW 15 Dr. B.S. Thakuria the then Medical Officer Incharge, Government Dispensary, Bandikui. The post mortem examination reports prepared by him are Ex. The investigating officer reached there and prepared the inquest reports of their dead bodies. The post mortem examination of the dead bodies of Panna Lal and Bheru Lal was conducted by PW 15 Dr. B.S. Thakuria the then Medical Officer Incharge, Government Dispensary, Bandikui. The post mortem examination reports prepared by him are Ex. P 27, Ex. P 28. He found multiple ante mortem gun shot wounds on the dead bodies of Panna Lal and Bheru Lal. In his opinion, the cause of death of the two victims was shook due to intra abdominal haemorrhage caused by gunshot wounds. The post mortem examination of the dead bodies of Smt. Gulab add Mool Chand was conducted by PW 19 Dr. P.S. Agrawal the then Medical Jurist, Govt. Hospital, Alwar. The Post mortem reports prepared by him are Ex.P 43 and Ex.P 44. He noticed multiple ante mortem injuries on the dead bodies. In his opinion, the cause of death of Mool Chand was head injury with , fracture,of skull, compression of brain and haemorrhage. The death of Mst. Gulab in his opinion occurred due to head injuries with fracture of scull rupture eye ball compression and haemorhage. Dr. Agrawal also examined the injuries of Srat. Gora, Chiranji'Lal and Smt. Saroj. Their injuries were simple except one of Mst. Gora who had sustained fracture of fron ol bone on left side. The injury reports are Ex.P 40, Ex.P 41, Ex.P 42, and Ex. P 45. 4. The investigating officer while inspecting the site found six fired 12 bore cerridge cases lying scattered. He seized arid sealed them by preparing seizure memo Ex. P 12. The investigation officer noticed foot impressions around the place of incident. The moulds of the footprints were prepared and lifted vide memo Ex.P 13 On 12-10-83 Smt. Shakuntla (PW 14) filed the list Ex. Pr-26 of the looted properties. On 5-11-1983 Chiranji Lal (PW; 7) also filed the list Ex. P 18 of the stolen properties. 5. Investigation continued but nothing came out substantial. On 15-11-1983, PW 16 Shashi Kant the then Station House Officer, Kherli (Distt. Alwar) had an encounter miscreants around 11.30 p.m. near a hillock of village Kalwari After an exchange of gun shots, he rounded up six persons four man and two women. P 18 of the stolen properties. 5. Investigation continued but nothing came out substantial. On 15-11-1983, PW 16 Shashi Kant the then Station House Officer, Kherli (Distt. Alwar) had an encounter miscreants around 11.30 p.m. near a hillock of village Kalwari After an exchange of gun shots, he rounded up six persons four man and two women. The four men who were subdued and arrested are accused Brij Mohan, Gulla, Barchia and Nahar Singh (co-accused but died during trial) while the two women were Smt. India alias Vimla (co-accused convicted under section. 412 IPC) and Kelashi. On search, one country-made pistol, some, fired and lived cartridges, one barrel of 2 bore gun and one butt were found in their possession. Some articles viz. clothes and silver ornaments were also found in their possession. These articles were seized and sealed vide seizure memo Ex. P 29. The fire arms viz. the country made pistol etc. were also seized and sealed. These arrested persons were involved in some dacoity cases already under investigation at Police Station Kherli. Since the modus operandi of the dacoities committed in the instant case at Baswa and in the casts pending at Police Station Kherli was common, suspicion arose against the arrested accused persons that they could be also those culprits who had committed the dacoity at Baswa. The Station House Officer Shashi Kant (PW. 16) addressed letter Ex. P-36 on 27 11-1983 to Station House Officer P.S. Bandikui and sent a sealed packet of the articles recovered from the accused persons. The accused persons arrested in the encounter by police Kherli were lodged in District Jail, Alwar as they were found involved in the dacoities committed at the places within the local limits of jurisdiction of that police station. PW 37 Ram Kripal - SHO P.S. Bandikui who had taken up the investigation in his hands went to District Jail, Alwar on 12-1-1984 and arrested the appellants Gulla alias Satya Narain, Brij Mohan alias Ram Singh, Barchia and Nahar Singh (who died during trial). These accused were brought to Bandikui and were lodged in Sub Jail on 13-1-1984. Test identification parades of these accused were arranged on 13-1-1984 itself in the judicial lockup. The test identification was conducted by the Judicial Magistrate Shri Om Prakash Gupta (PW. 17). These accused were brought to Bandikui and were lodged in Sub Jail on 13-1-1984. Test identification parades of these accused were arranged on 13-1-1984 itself in the judicial lockup. The test identification was conducted by the Judicial Magistrate Shri Om Prakash Gupta (PW. 17). As many as 11 persons from Baswa participated in the test identification and they all correctly identified the appellants. The appellants were taken back in police custody by the investigating officer Ram Kripal (PW 37). In consequence of the information's furnished on 19-1-1984 by the appellants while they were in police custody, some clothes, utensils and silver ornaments which were looted in the dacoity at Baswa were recovered lying concealed and hidden in the house of the appellant Barchia. The specimen moulds of the footprints of the appellants were taken. These moulds were sent along with the footprints lifted from the places near about the incident for examination to the Finger Print Bureau, Jaipur. The fire arms which were recovered from the appellants in the encounter on 15-11-1983 by the S.H.O. Shashi Kant (PW 16) and the six empty cartridge cases lifted from the place of incident at Baswa were sent to the State Forensic Science Laboratory, Jaipur. On examination, it was found that both the foot prints tallied with each other. As per reports Ex. P-78 and Ex. P-79 received from the SFSL Jaipur, the six empty cartridges lifted from the place of incident at Baswa were fired from the pistol and the barrel of the SBBL gun recovered from the appellants in the encounter on 15-11-1983. 6. After when the investigation was over, the police submitted a crime report against accused Barchia, Nahar Singh, Satya Narain alias Gulla, Brij Mohan alias Ram Singh and Smt. Vimla in the court of the Munsif & Judicial Magistrate, Bandikui who in his turn committed the case for trial to the court of the Additional Sessions Judge, Dausa. The learned Additional Sessions Judge framed a charge under section. 412 IPC against Smt. Vimla and under sections. 396, 397, 397/149 and 450 against the remain-four viz. Barchia, Nahar Singh, Satya Narain and Brij Mohan. The accused pleaded not guilty and faced the trial. The defence taken by them was that they have been falsely implicated merely on suspicion. The learned Additional Sessions Judge framed a charge under section. 412 IPC against Smt. Vimla and under sections. 396, 397, 397/149 and 450 against the remain-four viz. Barchia, Nahar Singh, Satya Narain and Brij Mohan. The accused pleaded not guilty and faced the trial. The defence taken by them was that they have been falsely implicated merely on suspicion. They further stated that they were shown to the witnesses at Police Station, Kherli much before their identification had taken place in Sub Jail Bandikui on 13-1-1984. They denied to have made the disclosure statements during investigation and the recovery of the looted property in consequence of those information's. In the course of trial, the prosecution examined 39 witnesses and filed 87 documents. In defence, the accused adduced no evidence Accused Nahar Singh passed away during trial. On the conclusion of trial, the learned Addl. Sessions Judge found the charges duly proved against all the four accused persons. Accused Brij Mohan, Gulla and Barchia were convicted and sentenced as mentioned at the very out-set. Accused Smt. Vimla was convicted under section 412, IPC and sentenced to three years rigorous imprisonment. She has not come up in appeal to challenge her conviction. The remaining three accused Brij Mohan, Gulla and Barchia have taken the appeal against their conviction and sentence. As stated earlier, the learned Additional Sessions Judge has submitted the proceedings for confirmation of the death sentence. 7. We have heard the learned Public Prosecutor and the learned counsel for the accused. We have also gone through the case file carefully. 8. Learned counsel appearing for the accused appellant did not challenge nor was in a position to challenge the commission of the dacoity and the killing of four persons in the night between October 11th and 12th, 1983 in the house of PWs. Ram Swaroop and Chiranji Lal in village Baswa. There is overwhelming evidence to show that more than five miscreants went to the house of Ram Swroop, Chiranji Lal in Baswa in the said night, killed Panna Lal, Bheru Lal, Mool Chand and Smt. Gulab, used violence against the other immates of the family and decamped with properties-including gold and silver ornaments cash, utensils, clothes and other articles of huge valuation. It also cannot be denied that the culprits were armed with lethal weapons like pistol, gun, fersa and lathies. It also cannot be denied that the culprits were armed with lethal weapons like pistol, gun, fersa and lathies. We, therefore, need not touch the evidence as regards the commission of the dacoity and the killing of four persons in that dacoity. 9. In cases of dacoity, the evidence generally available is of three categories, viz; (1) the culprits are caught red handed on the spot but this is rare because the culprits go fully armed and well prepared whereas the victims are fear sticken and are more interested in saving their skin rather than in combating the miscreants; (2) identification of the culprits when they are later arrested during the investigation; and (3) discovery of the incriminating facts such as looted property, weapons used in the commission of the offence and like such other objects. 10. Here in the instant case, the incriminating evidence is of second and third categories. 11. In addition to the two seats of evidences, the prosecution has also adduced other types of evidence. They are:- (1) The chance footprints lifted from the places nearabout the site of incident tallied with the specimen footprints of the appellants, (2) The fired cartridges cases on scientific examination were found to have beep fired from the fire arms recovered from the appellants by police Kherli (Distt. Alwar) in the encounter in the night on 15-11-1983, and (3) The modus-operandi of the dacoity committed at Baswa in the night between. 11-10-1983 and 12-10-1983 and subsequent dacoities committed in the night between 12-10-1983 and 13-10-1983 in village Bhanwar P.S. Kherli and in the night on 15-11-1983 in village Kalwari P.S. Kherli (Distt. Alwar) was the same and common. 12. The evidence of identification of culprits plays a very significant role and if found trustworthy is sufficient to seek their - conviction. But before the identification is made the foundation of conviction-it should be fair and free from all taints. The facts of identification, whether of person or property, is relevant and admissible in evidence under section 9 of the Evidence Act. The substantantive evidence regarding identification is that which is given by the witness is Court during trial. But as has been consistently held that a mere-identification of a culprit in Court has little or no evidentiary value in absence of prior test identification parade. The substantantive evidence regarding identification is that which is given by the witness is Court during trial. But as has been consistently held that a mere-identification of a culprit in Court has little or no evidentiary value in absence of prior test identification parade. Instead of judicial pronouncements on the point, 1 would reproduce the listing a catelogo of relevant pass ages from the treatise on Law of Evidence" by woodroffa and Amir Ali (1979 Edition) where on page 412 to 416, the whole legal position regarding identification has been summed up. The learned commentrators observe:- "Facts which establish the identity of an accused person are relevant under this section. The general rule, the substantive evidence of a witness is the statement made in the Court. The purpose of a prior test identification is to test and strengthen the trustworthness of he evidence. It is accordingly considered a safe rule of prudence to generally lock for corroboration of the sworn testimony of witness in Court as to the identity of the accused who are stranger to them, in the form of earlier identification proceedings. There may be, however, exceptions to the general rule where, for example. The Court is impressed by particular witness whose testimony ,it can safely rely without such or other corroboration. The identification during police investigation can only be used for corroborating or contradicting the the evidence of the witness concerned as given in Court." "The result of the identification parade conducted at the stage of investigation is not a piece of substantive evidence and cannot be the basis of a conviction by itself. The evidence against the accused must be the evidence given by the identifying witness in the witness box. It however, provides a very good piece of corroborative evidence and greatly enhances the credibility of the evidence of identification given in court. In fact mere evidence of identification in court in the absence ,of a prior identification test is of very little consequence." "The whole idea of a test identification parade is to,see if the witness who claims to have seen the accused at the time of the occurrence can identify him from amongst others without and from any other source. If he can, then it becomes more or less certain that the evidence of identification as deposed to by the witness is genuine. If he can, then it becomes more or less certain that the evidence of identification as deposed to by the witness is genuine. Before the evidence of Identification given in court can be accepted as sufficient to establish the identity of an unknown accused, it is necessary to see that there is some good corroborative evidence in support of the evidence of identification in court. And such corroborative evidence usually comes from the evidence of the test identification where the witness pick up the accused from amongst a number of, persons with whom he is mixed up. True, the evidence of the witness having identified the accused at a test identification parade has no substantive value, but is very important corroboration of bis testimony in court. Thus, in the absence of test identification i proceedings, the mere ipso dixit of the witness that the accused was one of the culprits could not be believed at all." 13. Since the test identification parade plays a significant role in assessing the guilt of the accused, it should be held soon after the arrest of the suspect. Dealing with this aspect, learned Authors observed at page 412 as under:- "A test identification is designed to furnish evidence to corroborate the evidence witness concerned tenders before the court. When the accused person is not previously unknown to the witness concerned then identification of the accused by the witness soon after the former arrest is of vital importance because it furnishes to the investigation agency an assurance that the investigation is proceedings on the right lines in addition to furnishing corroboration of the evidence to be given by the witness latter in court at the trial. It is important both for the investigating agency for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions are affectively taken. It would, in1 addition, be fair to the witness concerned who was a stranger to the accused because in that event the change of his memory facing is reduced and he is required to identify the alleged culprit soon after the occurrence. Thus, justice and fairlay can be assured both to the accused and to the prosecution". 14. It would, in1 addition, be fair to the witness concerned who was a stranger to the accused because in that event the change of his memory facing is reduced and he is required to identify the alleged culprit soon after the occurrence. Thus, justice and fairlay can be assured both to the accused and to the prosecution". 14. As regards discovery of a fact in consequence of the information furnished by the accused whilst under police custody, the information is relevant as well as admissible in evidence under section 27 of the Evidence Act whether such information amounts to a confession or not. Section 27 acts as a proviso to Section 26 and partially removes the embargo put on the reception of an accused's confession before police. However, the information admissible in evidence is only that much which distinctly leads to the discovery of a fact. The reason for the admissibility of the information is that the discovery by itself is a guarantee of the genuineness of the information. Thus, section 27 is based on the doctrine of confirmation by subsequent facts. The fact discovered must have a direct link to the commission of crime. The statement of the accused leading to the discovery of stolen property constitutes a very valuable piece of evidence against him in case of dacoity. In the absence of any reasonable explanation by a accused in such a case, the discovery of the plundered property in consequence of the information furnished by him gives rise to a presumption under section 114 of the Evidence Act that he took part in the dacoity. 15. In Pershadi v. The State of Uttar Pradesh, AIR 1957 SC 211 , the clothes of the accused victim were recovered in consequence of the information furnished by the accused whilst under police custody. There Lordships observed : "The fact that the appellant hid the clothes of the deceased clearly indicate his guilty knowledge and is consistent only with his having murdered the deceased". 16. In Balbir Singh v. The State of Punjab, AIR 1957 SC 216 , it Was observed:- "The statement of the accused that he had burried the earrings Was admissible in evidence under section 27 and the High Court was right in holding that the recovery was a circumstances which connected the accused with the crime." 17. 16. In Balbir Singh v. The State of Punjab, AIR 1957 SC 216 , it Was observed:- "The statement of the accused that he had burried the earrings Was admissible in evidence under section 27 and the High Court was right in holding that the recovery was a circumstances which connected the accused with the crime." 17. In K. Chinnaswami Reddy v. The State of Andhra Pradesh, AIR 1962 SC 1788 , their Lordships observed ; - "Where in a burglary case, the accused in police custody made a statement to the police that he would show the place where he had hidden the ornaments and that statement led to the discovery of the stolen ornaments; Held, that the whole of the statement relates distinctly to the discovery of ornaments and is admissible under section 27. The words "where he had hidden them" have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that Statement and would therefore not be inadmissible." 18. We shall first take up the appeal of the accused persons to see whether their conviction for the offences they were convicted is proper. 19. Mr. Dhankar learned counsel for the appellants has raised numerous contentions to show that the conviction is wholly and unsustainable. We shall deal with his contentions at seriatim. 20. The first contention raised by Mr. Dhaknar is that the evidence relating to identification of the appellants is wholly unsatisfactory and crumbles down on many grounds. 21. It was argued that the dacoity, was committed in a house and that too situate in a village. There is no reliable evidence to show,that there was any source of light either in the house or outside in the vicinity. As such it was difficult for the inmates of the house and other witnesses to sea the dacoits and mark their features. It was also argued that no source of light was mentioned in the First Information Report Ex. P 1. The source of light was lateron interon by the prosecution witnesses during trial. If the dacoity was committed on darkness, the entire evidence relating to identification becomes shaky on which no reliance can be placed. 22. We have examined the contention in the light of the evidence adduced by the prosecution. P 1. The source of light was lateron interon by the prosecution witnesses during trial. If the dacoity was committed on darkness, the entire evidence relating to identification becomes shaky on which no reliance can be placed. 22. We have examined the contention in the light of the evidence adduced by the prosecution. It it true that the dacoity was committed in the night in house and that too situate in a village. It is equally true that the source of light was not mentioned in the First Information Report. But there is over-whelming and convincing evidence to snow that electric light was there on the road in the vicinity and also in the house where the dacoity was committed. PW 1 Ram Swaroop in whose house the dacoity was committed categorically stated in his cross examination that the electric light was there on the pole on the road outside the house and electric light was also there in the house in which the dacoity was committed. PW 7 Chiranji Lal made a positive statement in his cross-examination that electric light was there on the pole standing on the road and electric light was also there in the, chowk and verandah, of the house in which dacoity was committed. PW 6 Smt. Gora stated that electric light was there in the chowk of the house where the dacoity was committed. PW 8 Smt. Saroj also stated in her cross-examination that electric light was there in the chowk, Bethak and verandah of the house wherein the dacoity was committed. PW 4 Smt. Shakuntla also made a categorical statement that electric light was there on the pole standing on the road and in the verandah of the house in which the dacoity was committed. 23. These PWs Ram Swroop, Smt. Gora, Chiranji Lal, Smt, Saroj and Smt. Shakuntla are the inmates of the family residing in that house in which the dacoity was committed. It is true that they did not state in their statements recorded during investigation under section 161, Cr. PC that electric light was there on the road and in their house. The omission is there but this omission has no material significance or consequence. It has not been denied nor any cross examination has been directed to show that there was no electric light in town Baswa and in the house in which the dacoity was committed. PC that electric light was there on the road and in their house. The omission is there but this omission has no material significance or consequence. It has not been denied nor any cross examination has been directed to show that there was no electric light in town Baswa and in the house in which the dacoity was committed. If there was electric light in the town of Baswa, it can be easily said that there was light in the house in which the dacoity was committed for the simple reason that the victims of the dacoity were very well to do people. None of them was cross examined to show that electric light was not installed in their house. 24. Pw. 3 Radhey Shyam, Pw. 5 Badri Prasad, Pw. 9 Suraj Narain, Pw. 10 Dhanna, Pw. 12 Prabhati Lal and Pw. 13 Nanag Ram who rushed to the spot on hearing the gun shots when the dacoity was being committed stated that there was electric light on the pole standing on the road. Of course they have not stated so in their statements recorded during investigation under section. 161 Cr. PC But this omission has no material significance. Probably it did not occur to investigating officer that these witnesses should be questioned on the point of light. A crime like dacoity, by its very nature, cannot be committed in pitch darkness, for the criminal (being strangers) have to find out their way, have to discover the whereabouts of goods, have to sort out those articles which they intend to appropriate, and have to take precautions to guard against counter-attacks by the villagers. All this makes the presence of adequate source of light imperative. 25. Again the dacoity in the instant case must have taken time. It can be therefore, legitimately inferred that the inmates of the house must have switched the points to diffuse the electric light. It is so natural that everybody would do so in order to drive away the culprits and further to protect themselves and to attract the people of the locality. It is then well-nigh impossible to commit a dacoity in the darkness. We, therefore, find no force in the contention of Mr. Dhankar that there was no light on the road or in the house where the dacoity was committed. 26. The next contention raised by Mr. It is then well-nigh impossible to commit a dacoity in the darkness. We, therefore, find no force in the contention of Mr. Dhankar that there was no light on the road or in the house where the dacoity was committed. 26. The next contention raised by Mr. Dhankar is that there was undue and inordinate delay in conducting the test identification parade of the appellants. They were arrested in the night on 15-11-1983 by Pw. 16 Shashi Kant the Station House Officer, Police Station Kherli (Distt. Alwar) in the alleged encounter. According to Shashi Kant (Pw. 16), they were first lodged in Central Jail, Alwar and were taken back in police custody where they remained nearly for 10 days. They were thereafter again lodged in Central Jail Alwar. It was contended by Mr. Dhankar that the appellants remained in Central Jail, Alwar upto 12-1-1984. They were thereafter arrested in this case by the investigating officer Ram Kripal (Pw. 37) on 12-1-1984 when they were in Alwar jail. The identification took place on 13-1-1984 at Bandikui. It was argued that when the appellants remained in Central Jail, Alwar for a pretty long time of nearly six weeks, it was incumbent on the investigating officer to get their test identification parade arranged in this case during that period. The delay has not been explained by the prosecution. This delay goes to the root and diminished the evidentiary value of the identification parade. 27. It is true that the appellants remained in Central Jail. Alwar upto 12-1-1984. it was at 12-1-1984 that they were arrested in this case by 1.0. Ram Kripal (PW 37). The question arises as to whether it was incumbent on 1.0. Ram Kripal (PW 37) to have the test identification conducted before the appellants were arrested in this case on 12-1-1984. It is interesting to notice that no question was put to 1.0. Ram Kripal (PW 37) in cross examination as to why the test identification of the appellants was no got conducted at Alwar when they were in Central Jail there. It appears that 1.0. Ram Kripal was under an impression that the identification parade of the appellants could take place only after they were arrested in this case of the dacoity committed at Baswa. The appellants were lodged in Central Jail, Alwar in connection with dacoities committed in District Alwar. It appears that 1.0. Ram Kripal was under an impression that the identification parade of the appellants could take place only after they were arrested in this case of the dacoity committed at Baswa. The appellants were lodged in Central Jail, Alwar in connection with dacoities committed in District Alwar. The dacoity in the instant case was committed in District Jaipur. The cases of dacoities are thus different in the two districts. In these circumstances, nothing adverse can be inferred against the prosecution. 28. The importance of early identification need not be stressed. In Devi v. State, 1952 RLW 223 , the delayed identification was condemned and held not reliable. In Ganga Singh v. The State of Rajasthan, 1977 Cr. LR (Raj.) 265 , the suspects were put for identification in a test parade nearly after 25 days of their arrest. There was no convincing explanation for the delay from the side of the investigating agency. It was observed that the possibility of the accused being shown to the identifying witnesses, in a case of late test identification cannot be altogether ruled out. Delay if there is any in holding the test identification of an accused after his arrest be properly explained. If explained, it has no telling-effect on the prosecution case. Here in the instant case, the appellants were arrested by police Kherli (Distt. Alwar) in other dacoity cases. They were not arrested in the instant case of the dacoity which took place in District Jaipur. The appellants were arrested in this case on 12-1-1934 in Sub-Jail, Bandikui. It is interesting to point out here that in the test identification parade conducted on 13-1-1984 in Sub-Jail, Bandikui, the appellants stated before the Magistrate conducted the identification parade that they were shown to the witnesses at Kherli Police Station. Curiously enough, they did not state so in their statements recorded under section. 313 Cr. PC. On the other hand, the appellants stated that they were shown to the witnesses at Police Station Bandikui. These contradictory stands taken by the appellants show that they were not shown to the witnesses by police at Kherli. If they were not shown to the prosecution witnesses at Kherli by police, the delay in identification has no material bearing or consequence. 29. These contradictory stands taken by the appellants show that they were not shown to the witnesses by police at Kherli. If they were not shown to the prosecution witnesses at Kherli by police, the delay in identification has no material bearing or consequence. 29. It may be recalled that the appellants were arrested in this case on 12-1-84 in District Jail, Alwar and from there they were brought to Police Station Bandikui on the same day. They were produced before the Magistrate in the evening in the same day and were lodged in Sub-Jail, Bandikui early in the next morning. They could not be lodged in Sub-Jail, Bandikui in the evening on 12.1.84 because the jail was closed before they could be taken there after getting their remand of judicial custody from the Magistrate. The identification parade of the appellants was thus conducted promptly without any delay i.e. to say only on the very next date of their arrest. There is, therefore, no delay in conducting the test identification parade. 30. It was next argued by Mr. Dhankar that the appellants were shown to the prosecution witnesses at Police Station Kherli when they were arrested there in the encounter on 15-11-83. They stated so before the Magistrate who conducted the identification in sub-Jail, Bandikui on 13-1-1984 & this objection was recorded in the identification memos Ex. P-3, Ex, P-4, Ex. P-5 and Ex. P-6. We find no substance in this connection of Mr. Dhankar. In their statements recorded under section. 313 Cr. PC during trial, a specific question was asked to them that they were correctly identified by the prosecution witnesses in the test identification conducted in sub-Jail, Bandikui on 13-1-84 by the Judicial Magistrate O.P. Gupta (PW 17). Two appellants Brij Mohan alias Ram Singh and Gulla alias Satya Narain stated that they were shown to the prosecution witnesses at P S. Bandikui where this for investigation was pending. The third appellant Barchia simply stated that he was shown to the prosecution witnesses at the Police Station. He did not state as to at which police station he was shown to the prosecution witnesses Bandikui or Kherli. In the test identification Ex. P.3 to Ex. P-6, the appellants stated before the Judicial Magistrate O.P. Gupta (PW 17) who conducted the test identification that they were shown to the witnesses at P. S. Kherli or Laxmangarh. He did not state as to at which police station he was shown to the prosecution witnesses Bandikui or Kherli. In the test identification Ex. P.3 to Ex. P-6, the appellants stated before the Judicial Magistrate O.P. Gupta (PW 17) who conducted the test identification that they were shown to the witnesses at P. S. Kherli or Laxmangarh. They did not state that they were shown to the witnesses at P. S. Kherli or Laxmangarh in their statements recorded under section 313 Cr. PC_during trial. These inconsistent positions taken by the appellants are sufficient to reject their contention that they were shown to the prosecution witnesses at any before their test identification parade was arranged in sub-Jail Bandikui on 13-1-84. They were neither shown to the prosecution witnesses at P.S Kherli or at P.S. Bandikui. The contention of Mr. Dhankar thus holds no ground. 31. In challenging the identification, it was also argued by Mr. Dhankar that though the appellants were arrested in District Jail, Alwar in the afternoon of 12-1-1984 vide their arrest memos Ex. P-59, Ex P-60, E.x. P-61 and Ex. P-62 and were also produced before the Judicial Magistrate on the same day and a remand of their custody was obtained from him on 12-1-1984 itself, they were not lodged in Sub-Jail, Bandikui on that day. They were kept in police custody so that they may be shown to the witnesses participating in the identification. As such the possibility of the appellants being shown to the witnesses cannot be ruled out. We find no force in the submission of Mr. Dnankar. It is true that the accused were arrested on 12-1-1984 and were also produced before the Judicial Magistrate on the same day for getting a remand of their custody. The order of the Magistrate on the remand application Ex. P-39 shows that they were produced before the Magistrate at about 7.30 p.m. on 12-1-1984. It is in the knowledge of everybody that no accused is admitted in jail after 5.00 p m. and at least in the night The appellants were arrested in the afternoon on 12-1-1984 at Alwar, brought to Bandikui on the same day and were produced before the Judicial Magistrate at about 7.30 p.m. on the same day. It is in the knowledge of everybody that no accused is admitted in jail after 5.00 p m. and at least in the night The appellants were arrested in the afternoon on 12-1-1984 at Alwar, brought to Bandikui on the same day and were produced before the Judicial Magistrate at about 7.30 p.m. on the same day. A remand order of custody was obtained at 7.50 p.m. In these circumstances, when the appellants could not be lodged in Sub-Jail, Bandikui, the only course open to the investigating officer was to keep them at the police station and to lodge them in Sub-Jail next day. The investigating officer thus acted with honesty and due diligence. We are unable to infer from the circumstances narrated above, that the appellants were kept at police station in the night of 12-1-1984 to show them to the witnesses. There is no foundation for such an inference. 32. The test identification parade was conducted by the Judicial Magistrate Shri O.P. Gupta (PW 17) on 13-1-1984. The memos of the identification test parade are Ex. P-3, Ex. P-4, Ex. P-5 and Ex. P-6. They show that the identification of each accused was conducted separately. As many as 11 persons were mixed up with each appellant. Since the identification test parade of each appellant was conducted separately and as many as 11 persons were mixed with each of them it can be safely said that the test identification parade was conducted by the Magistrate with the full sense of responsibility. The manner in which the identification test was conducted rules out the possibility of the identification of the appellants by chance. No exception can be taken to the manner in which the identification test parade was conducted by the Magistrate. It was conducted in a fair manner. 33. In order to give credence to the test identification parade, it should be shown that the witness had a fair opportunity of seeing the dacoits. The evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few seconds but for some length of time. The length of time enables a witness to get an impression to help him picking out the culprit in the parade. We shall deal with this aspect individually of each accused. 34. Accused Gulla alias Satya Narain as many - as 11 witnesses viz. The length of time enables a witness to get an impression to help him picking out the culprit in the parade. We shall deal with this aspect individually of each accused. 34. Accused Gulla alias Satya Narain as many - as 11 witnesses viz. PW 1 Ram Swroop, PW 3 Radhey Badri Prasad, PW 7 Chiranji Lal, PW 3 5mt. Saroj, PW 9 Suraj Narain, PW 10 Dhanna, PW 12 Prabhati Lal, PW 13 btojag-Ram, PW 14 Smt. Shakuntla and PW 21 Mangi Lal participated in his test identification parade and correctly identified him. PW 1 Ram Swroop. PW 7 Chiranji Lal, PW 8 Smt. Saroj and PW 14 Smt. Shakuntla are the persons in whose house the dacoity was committed. Out of them PW 7 Chiranji Lal and PW 8 Smt. Saroj are injured persons who were assaulted and belaboured by the culprits while committing the dacoity. PW 1 Ram Swaroop was sleeping in his fire wood depot. The dacoity was committed in his house. He is the real brother of PW 7 Chiranji Lal. When he was appraised of the dacoity being committed in his house by PW 11 Kedar, he immediately went there. He saw six or seven culprits emerging from his house and going towards the Nala. Two of them had guns and the others had bag, tin boxes etc. He correctly identified this accused as one of those culprits whom he had seen emerging from his house and going towards the Nala. It is he who lodged the First Information Report of the incident. PW 7 Chiranji Lal was sleeping in the outer verandah of his house in which the dacoity was committed. He stated that when the ladies of his house raised cries, he got up and went inside. He saw two or three culprits striking blows to his wife Smt. Gora (PW 5) and his brother's wife Gulab (the deceased victim) with lathies and fersies. He caught hold one of them and some one of the culprits started beating him. As a result of, the culprit whom he had over-powered thus managed to extricate himself. He was landed blows. At that very time some of the culprits fired shots from their guns. Mool Chand who was his brother and who was sleeping in an enclosure nearby came there in the house. He was also struck blows with lathies and fersies by the culprits. He was landed blows. At that very time some of the culprits fired shots from their guns. Mool Chand who was his brother and who was sleeping in an enclosure nearby came there in the house. He was also struck blows with lathies and fersies by the culprits. He stated that accused Satya Narain had a lathi and he had struck blows with it. He further stated that accused Satya Narain had lifted the attache case from his house. From his statement, it can be easily said that he remained with the culprits for a pretty long time and had thus a fair opportunity to see them. He himself received injuries in this incident in this incident and that makes his claim to identify the culprits well-founded. PW 8 Smt. Saroj is an injured person. She was sleeping in the Bethak situate in the verandah. She stated that hearing the one, she got up and came out in the courtyard. She saw five culprits, two inside the house and three in the courtyard. Two had guns, two had lathies and one had an axe. She saw that they were beating her husband's brother Chiranji Lal (PW7). She further stated that the culprits also landed blows to PW 6 Gora and the deceased Smt. Gulab. The witness further stated that when she saw Chiranji Lal being assaulted and belaboured, she tried to intervene. She was also beaten by one of them viz. the deceased accused Nahar Singh. She further stated that her husband's brother Mool Chand came in the house when the dacoity was being committed and he too was beaten by them as a result of which he subsequently died after some time. She also stated those culprits who had guns fired shots. She identified this accused Satya Narain as one of those dacoits. She correctly identified him in the test identification parade and during trial. She was present throughout when the dacoity was committed. When she tried to help PW 7 Chiranji Lal she was also not spared by the culprits. She thus had ample time to come in contact with the culprits and had fair opportunity to make an impression about their appearance and facial features. Her claim to see the dacoits is well founded PW 14 Smt. Shakuntala is the daughter-in-law of PW 7 Chiranji Lal. She thus had ample time to come in contact with the culprits and had fair opportunity to make an impression about their appearance and facial features. Her claim to see the dacoits is well founded PW 14 Smt. Shakuntala is the daughter-in-law of PW 7 Chiranji Lal. She was also sleeping in a room of the house where she got up. She saw five or seven culprits in the courtyard of her house. Two of them had gums, one had a fersa and the others had lathies. The culprits broke open the locks of the boxes. She came out in the verandah. Some persons of the vicinity also arrived outside the house. The two culprits who had guns fired shots. Bheru Lal and Panna Lal the two deceased victims sustained the gun shots injuries and passed away. The culprits also landed blows to her father-in-law Chiranji Lal PW 7 with lathi and fersa. When PW 8 Smt. Saroj tried to help Chiranji Lal, she too was beaten The witness further stated that the culprits landed blows to Mst. Gulab and Mst. Gora. She also stated that One of the culprits came to her and forcibly snatched gold earrings from her. The culprits thereafter decamped with the looted property. When Mool Chand tried to resist the dacoits, he too was severely beaten as a result of which he subsequently died. She stated that she correctly identified this accused during trial and the test identification parade and stated that he was one of those who had committed the dacoity. This witness was present throughout the commission of the dacoity. She had also thus ample time to come in contact with the dacoits and watch their arts. Her claim to identify the dacoit is well-founded. 35. PW 3 Radhey Shyam is the son of the deceased Bheru Lal. His house is situate just in front of the house in which the dacoity was committed vide site plan Ex. P-2. He deposed that when he heard the gun shots, he got up and came out. He found his father Bheru Lal lying on the ground with gun shot injuries. Panna Lal another deceased victim also received gun shot injuries. He saw culprits standing outside the house having guns with them, and some inside the house in which the dacoity was committed. The culprits came out of the house and went towards Nala. He found his father Bheru Lal lying on the ground with gun shot injuries. Panna Lal another deceased victim also received gun shot injuries. He saw culprits standing outside the house having guns with them, and some inside the house in which the dacoity was committed. The culprits came out of the house and went towards Nala. His claim to have seen the dacoits cannot be dismissed as unfounded. He correctly identified this accused both during trial and test identification parade. 36. PW. 5 Badri Prasad, PW. 9 Suraj Narain, PW. 10 Dhanna, PW. 12 Prabhati Lal and PW. 13 Nanag Ram are the residents of the vicinity. They rushed to the spot on hearing the cries and the gun shots. They all correctly identified this accused both during trial and test identification parade. Their claim to have seen the culprits is well-founded and cannot be dismissed or discarded. These persons could not dare to catch hold of the culprits because the culprits were well armed with guns, fersies and lathies. These witnesses had fair opportunity to see the culprits. 37. The next piece of evidence against him is the recovery of the looted property in consequence of the disclosure statement made by him under section. 27 of the Evidence Act. The disclosure statement is Ex. P-83 recorded on 19-1-1984 by PW. 38 R.B. Sharma the then Additional Superintendent of Police in the presence of PW. 37 Ram Kripal S.H O. They stated that after making the disclosure statement recorded in Ex P-83, accused Gulla alias Satya Narain took them an4 the Mohibirs to the house of co-accused Barchia situate in village Nagal Moonjia and took out a 'Potli' lying concealed in a heap of discarded articles. When the Potli was opened, some clothes, ornaments and one brass glass inscribed with the name of Chiranji Lal (PW. 7) were found in it. They were seized and sealed and seizure memo Ex. P-54 was prepared. Accused Gulla has net hid any claim on these recovered articles. These recovered articles were correctly identified by the inmates of the house as belonging to them and taken away by the dacoits. 38. Taking these two sets of evidence together viz. 7) were found in it. They were seized and sealed and seizure memo Ex. P-54 was prepared. Accused Gulla has net hid any claim on these recovered articles. These recovered articles were correctly identified by the inmates of the house as belonging to them and taken away by the dacoits. 38. Taking these two sets of evidence together viz. (1) the identification and (2) the recovery of stolen articles, it can be safely said that accused Satya Narain alias Gulla was one of those culprits who had committed the dacoity in which four persons were done to death. 39. Accused Brij Mohan alias Ram Singh - Those 11 witnesses who had identified accused Gulla alias Satya Narain also identified this accused first in the test identification parade and then during trial. We have discussed the evidence of these 11 witnesses at length while dealing with the case against accused Gulla. We need not, therefore, repeat our reasoning PW 1 Ram Swroop, PW 5 Badri Prasad, PW 7 Chiranjilal, PW 12 Prabhati Lal and PW 13 Nanag Ram stated that accused Brij Mohan had a gun with him. 40. The next piece of evidence against him is the recovery of the plundered property in consequence of the disclosure statement made by him under section. 27 of the Evidence Act. The disclosure statement made by him is Ex. P-84 recorded on 19-1-1984 by PW 38 R.B. Sharma the then Additional Superintendent of Police in the presence of S.H O. Ram Kripal (PW 37). They stated that after making the disclosure statement recorded in Ex. P-84, accused Brij Mohan took them and the Mohtbirs to the house of accused Barchia situate in village Nangal Mojia (Distt. Alwar) and took out a bag lying concealed in the'chappai' of the house. When the bag was opened, some clothes, silver and gold ornaments, one brass glass inscribed with the name of Chiranji Lal (PW 7) were found in it. They were seized and sealed and seizure memo Ex. P-56 was prepared. Accused Brij Mohan has not laid any claim on these recovered articles. These recovered articles were correctly identified by the inmates of the house as belonging to them and taken away by the dacoits. 41. Taking these two sets of evidence together viz. They were seized and sealed and seizure memo Ex. P-56 was prepared. Accused Brij Mohan has not laid any claim on these recovered articles. These recovered articles were correctly identified by the inmates of the house as belonging to them and taken away by the dacoits. 41. Taking these two sets of evidence together viz. (1) the identification and (2) the recovery of stolen articles, it can be safely said that accused Brij Mohan alias Ram Singh was one of those culprits who had committed the dacoity in which four persons were done to death. 42. Accused Barchia - Those 11 witnesses who had identified accused Gulla alias Satya Narain also identified this accused first in the test identification parade and then during trial. We have discussed the evidence of these 11 witnesses at length while dealing with the case against accused Gulla. We need not, therefore, repeat our reasoning. PW 1 Ram Swaroop, PW 5, Badii Prasad, PW 7 Chiranji Lal, PW 12 Prabhati Lal, and PW 13 Nanag Ram stated that accused Barchia had a gun with him. 43. The next piece of evidence against him is the recovery of the plundered property in consequence of the disclosure statement made by him under section. 27 of the Evidence Act. The disclosure statement made is Ex. P-81 recorded on 19-1-1984 by the Additional Superintendent of Police R.B. Sharma (PW 38) in the presence of S.H.O. Ram Kripal (PW 37). They stated that after making the disclosure statement recorded in Ex. P-18, accused Barchia took them and the Mohtbirs in his house situate in village Nangal Mojia and took out a 'Potli' lying concealed in a tin-box. When the Potli was opened, one saree, gold and silver ornaments and one brass glass inscribed with the name of Chiranji Lal (PW 7) were found in it. These articles were seized and sealed and seizure memo Ex. P-57 was prepared. Accused Barchia has not laid any claim on these recovered articles. These recovered articles were correctly identified by the inmates of the house as belonging to them and taken away by the dacoits. 44. Taking these two sets of evidence together viz. (1) the identification and (2) the recovery of the stolen articles, it can be safely said that accused Barchia was one of those culprits who had committed the dacoity in which four persons were done to death. 45. 44. Taking these two sets of evidence together viz. (1) the identification and (2) the recovery of the stolen articles, it can be safely said that accused Barchia was one of those culprits who had committed the dacoity in which four persons were done to death. 45. Accused Nahar Singh died during trial. We need not, therefore, discuss evidence against him. We may, however, point out that the evidence against him also consisted of the same sets i.e. of identification and recovery of the looted property. 46. We may add here that the recovery of the stolen properties cannot be discarded as being planted or invented. The market value of the recovered property runs in some thousands. It is difficult to imagine that the police would procure these stolen articles from somewhere else and would plant them as the recovery at the instance of the accused. The police officers are not expected to invest such huge amounts from their pockets only to plants a false recovery. The recoveries made of the plundered property are not fake and fictitions. 47. There is one more prominent feature which shows that the dacoity was committed by the accused appellants along with their companions. Accused Brij Mohan alias Ram Singh, Gulla alias Satya Narain and the deceased Nahar Singh are residents of village Dhamanka District Gwalior (M P). They are all real brothers being sons of Bhaiya Lal. They are Nutts by caste. Accused Barchia is also a Nutt by caste and is a resident of village Moonjia Nangal in district Alwar. Accused Brij Mohan, Gulla, Barchia and Nahar Singh were arrested in the encounter on 15-11-1983 by police near a hillock in village Kalwari in district Alwar. PW. 16 Shashi Kant the then Station House Officer S. Kherli who led the police party in the encounter deposed these facts. Now accused Brij Mohan, Gulla and Nehar Singh who are residents of Distt. Gwalior (M.P.) had no reason to be present in District Alwar in that night along with accused Barchia. The districts of Alwar in Rajasthan and Gwalior in M.P. are not adjoining districts. There is a distance of more than 300 Kms. between these two districts. As such the presence of these accused in the night on 15-11-1983 in District Alwar was highly unusual. They had no reason to be present there where they had an encounter with the police. There is a distance of more than 300 Kms. between these two districts. As such the presence of these accused in the night on 15-11-1983 in District Alwar was highly unusual. They had no reason to be present there where they had an encounter with the police. It appears that accused Brij Mohan, Gulla and Nahar Singh. It further appears that accused Barchia had planned dacoities committed in village Baswa (Distt. Jaipur) and the other villages in District Alwar. The F.I.R. Ex. P-34 dated 13-10-1983 lodged at P.S. Kherli Distt. Alwar shows that a dacoity was committed in village Bhanwar in the night between 12th and 13th October, 1983. The F.I R Ex. P-34 shows that the dacoits while committing the dacoity in village Bhanwar fired the shots. Thus the manner in which the dacoities were committed in Baswa (Distt. Jaipur) and in Bhanwar (Distt. Alwar) was the same. Both these dacoities were committed in quick succession one after the other only with one day's interval. The appellants had no reason to be present at the place where they were arrested after encounter on 15-11-1983. This piece of circumstantial evidence speaks volumes against the appellants. 48. Accused Barchia is a resident of village Moonjia Nangal in District Alwar while the remaining three accused Brij Mohan, Gulla and the deceased Nahar Singh are residents of a village in District Gwalior (M.P.). Accused Barchia hid and concealed the looted properties in his house. It appears that the remaining three accused also took the house of the accused Barchia as a place where they could safely hide and conceal the looted properties. It is why the stolen properties were recovered in the house of accused Barchia at the instance of each of them. 49. We may reiterate that the culprits had come with open faces. No suggestion was put in cross-examination to the prosecution witnesses that culprits had veiled or muffled their faces. There was electric light all around in the house, on the road and in the street. When the faces of the culprits are unmasked and electric light is all around, the claim of the witnesses to have seen them while they (culprits) were moving in and out of house and to correctly identify them first during test identification parades and subsequently during trial cannot be discarded or dismissed. 50. When the faces of the culprits are unmasked and electric light is all around, the claim of the witnesses to have seen them while they (culprits) were moving in and out of house and to correctly identify them first during test identification parades and subsequently during trial cannot be discarded or dismissed. 50. The prosecution has also led evidence to show that the footprints lifted from the places near about the house of dacoity in village Baswa tallied with the footprints of the appellants. The prosecution also led evidence to show that the fired cartridge cases found on the place of incident, on chemical examination, were found to have been shot from the fire arms recovered from the appellants in the encounter. Unfortunately, these two sets of evidence value do not have much value. The reasoning is that neither the chance footprints lifted from the place of incident or near about it, nor the specimen footprints of the appellants were produced in the counts. So also fire arms recovered from the appellants in the encounter on 15-11-1983 have not been produced by the prosecution. The appellants had, therefore, no opportunity to meet these two sets of evidence. When the evidence relating to foot prints and fire arms is adduced, it is incumbent on the prosecution to produce the moulds of the footprints - chance and specimen - and the fire arms in the court during trial. We fail to understand why the moulds of the footprints and fire arms were not produced by the prosecution in the trial court. We, therefore, decline to take these two sets of evidence into consideration while assessing the guilt of the appellants. 51. However, the non-production of the moulds of the foot prints and the fire arms is not fatal to the prosecution because the prosecution has led the two sets of evidence consisting of identification of the culprits and the recovery of the looted property at their instance. 52. The appellants have been convicted under section. 396 IPC. It was argued by Mr. Dhankar that the evidence of the prosecution witnesses does not show as to who of them killed the four persons. Unless it is shown as to who of the appellants killed whom; the conviction under section. 396 IPC is bad The contention is barren and bizarre and we have no hesitation in dismissing it. 53. It was argued by Mr. Dhankar that the evidence of the prosecution witnesses does not show as to who of them killed the four persons. Unless it is shown as to who of the appellants killed whom; the conviction under section. 396 IPC is bad The contention is barren and bizarre and we have no hesitation in dismissing it. 53. Section 396 IPC reads as under:- "396. Dacoity with murder. 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 extended to ten years, and shall also be liable to fine." 54. A bare reading of the section makes it amply clear that it is not at all necessary for the prosecution to prove that the murder was committed by any particular member of the gang who committed the 8 dacoity or that - the murder was committed jointly by all the dacoits. What is required under section 396 IPC is that the murder should be committed in the commission of the dacoity by one or the other culprit, Where murder is committed in a commission of dacoity, everyone of the persons concerned in the dacoity is liable to be punished under section. 396 IPC. The essential ingredient of Section 396 Indian Penal Code is that the murder should have been committed in the commission of the dacoity. It is not at all necessary for the prosecution to show to who of the of the dacoits committed the murder. 55. Here in the instant case, four persons were murdered. Two of them were gunned down and to were beaten to death. The dacoits were six or seven in number. The prosecution evidence shows that two of them had guns, one bad an axe and the other had lathies. The murders were committed by the accused when resistance was put to them or when they were escaping with the looted property. The murders were, therefore, committed in the commission of the dacoity. The dacoity was conjointly committed Each of the appellants is, therefore, under section 396 IPC because the four murders were committed in committing dacoity. The contention of Mr. Dhankar thus fails. 56. Section 396 IPC requires that the murder should be committed in committing dacoity. The murders were, therefore, committed in the commission of the dacoity. The dacoity was conjointly committed Each of the appellants is, therefore, under section 396 IPC because the four murders were committed in committing dacoity. The contention of Mr. Dhankar thus fails. 56. Section 396 IPC requires that the murder should be committed in committing dacoity. The act and offence of dacoity starts from the entry of the culprits with the premises where the dacoity takes places and continues till their departure and retreat from the premises. So long the culprits remain on the premises, till then process of dacoity continues. Where the murder takes place before their departure, there can be no escape from the conclusion that the murder was committed in the course of committing dacoity. The process of dacoity commences from the culprits, entry and ends with their departure. The entry and retreat of the culprits constitutes the essential parts of the acts of committing the dacoity. They are not to be taken isolated or separated from the lifting of the properties. They all constitute one continuous process. Therefore, a murder during this process is a murder committed in committing dacoity. Here in the instant case the two inmates of the family were killed in the premises wherein the dacoity was committed and the two neighbours were killed when the culprits entered into the premises and later on when they were leaving the premises. The four murders were thus committed in the course of committing dacoity. The accused-appellants were, therefore, rightly convicted under section 396 Indian Penal Code. 57. The prosecution evidence relating to (i) identification of the appellants and (2) the recovery of the looted property in consequences of the disclosure statements made by them taken together is sufficient to connect the appellants with the dacoity in question. They are the very culprits who had committed the dacoity and killed as many as four persons in committing. The additional factor is of their unusual presence at the place in the night on 15-11-1983 when they were arrested in an encounter by the police. This additional factor strength the prosecution case lends assurance that they had not been falsely implicated. The appellants were, therefore, rightly convicted under sections. 396, 397 and 450 Indian Penal Code. Their conviction under section 397 /149 is however uncalled for when they have been convicted under section. 397 IPC. 58. This additional factor strength the prosecution case lends assurance that they had not been falsely implicated. The appellants were, therefore, rightly convicted under sections. 396, 397 and 450 Indian Penal Code. Their conviction under section 397 /149 is however uncalled for when they have been convicted under section. 397 IPC. 58. We may now turn to the reference made by the learned Additional Sessions Judge for confirmation of the death sentence awarded to all the three accused-appellants. 59. It was argued by learned Public Prosecutor that the court below has dealt with the matter of sentence at length and assigned special reasons for awarding the capital sentence of each of them. It was urged here is a case of dacoity committed during night in which four innocent persons were done to death. The crime was committed with full preparedness and in pursuance to a well knit plan. The reference should, therefore, be accepted and the sentence of death should be confirmed. It was on the other hand contended by Mr. Dhankar that the trend today is the restrict capital sentence to the rarest of rare cases. Section 354 (3) of the Criminal Procedure Code makes the sentence of imprisonment for life a general rule and death sentence an exception. It was argued that the case in our hand is based on circumstantial evidence. The prosecution evidence does not reveal as to which of the accused were arrested in January, 1984 and since they are in Jail. As such the sentence of imprisonment for life would suffice. We have taken the respective submissions into consideration. 60. Section 354 (3) Cr. PC reads as under:- "When the conviction is for an offence punishable with death or in the alternative, with imprisonment for life, or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and in the case of sentence of death, the special reasons for such sentence." A dissection of the sub-section makes it abundantly clear that where a person is convicted for an offence punishable with death or in the alternative for life imprisonment or a term of years, the reasons for punishment awarded, and where the convict is condemned to death, the special reasons, for awarding the sentence of death must be stated. Sub-section (3), thus, casts a mandate on the Court to record additional reasons when instead of imprisonment, the capital sentence is awarded. 61. In Balwant Singh v. State of Punjab, AIR 1976 SC 230 , their Lordships observed that it is not possible to make a catalogue of the special reasons which may justify the passing of death sentence in a case. The position is thus well settled that there is no, and cannot be a set formula, as to what would constitute 'Special reasons' for awarding a sentence of death. It depends on various factors, such as whether the crime was motivated pre-meditated, deliberate and a result of well-knit design, whether it was committed for lust or greed or whether it was committed at the spur of moment due to any sudden impulse or excitement. It is difficult to put `Special reasons' in a straight jacket. Each case depends on its particular facts. The task of discovering the special reasons has been left to the wisdom of the courts. 62. Now dacoity by its very nature require a pre-designed plan well calculated and pre-meditated as well as a firm and resolute determination to commit it. It cannot be committed by demented and weak minded persons. 63. In Iman Ali v. State of Assam, AIR 1963 SC 1464 , it was observed by their Lordships while dealing with the question of sentence in a case of dacoity. "It is true that the appellants were not convicted in the present case for the offence of murder simpliciter under section 302 IPC, but that, in our opinion, is immaterial. The conviction under section 396 was not based on constructive liability as members of the gang of dacoits. There was a clear finding by the Court of Session which has been upheld by the High Court that each of the appellants committed a cold-blooded murder by shooting two inmates of the house simply with the object of facilitating commission of dacoity by them. ....The offence section 396 was no less heinous than an offence under section 302 IPC. In these circumstances when the Court of Session gave no reason at all for not awarding the sentence of death and for sentencing them to imprisonment for life only, it cannot be held that the High Court was not justified in interfering with that order." 64. In these circumstances when the Court of Session gave no reason at all for not awarding the sentence of death and for sentencing them to imprisonment for life only, it cannot be held that the High Court was not justified in interfering with that order." 64. Here in the instant case, the facts are quite alarming. The accused went fully armed with deadly weapons like gun, pistol, fersy and lathies etc. They killed four innocent persons in committing the dacoity. Two were shot dead and two were hacked to death. The only fault of the hapless inmates of the house was that on seeing the accused, they raised cries, started weeping and verbally protested as to why their house was plundered, looted and ransacked The fault of the two neighbours was that they rushed to help the inmates of the house when the dacoity was being committed. These four deceased victims caused no harm to the accused persons. The enormity, intensity and heinousness of the crime committed by the accused constitute special reasons to justify a sentence of death for each of them. We find no extenuating or mitigating circumstances in favour of the accused which may impel or persuade us to modify the sentence awarded by the Sessions Judge to the appellants. Each accused took a prominent role in the commission of the crimes. The role of none of them is secondary. They, therefore, deserve no compassion or leniency in the matter of sentence. 65. In the result, the conviction of accused (i) Brij Mohan alias Ram Singh, (ii) Gulla alias Satya Narain and (iii) Barchia under sections 396, 397 and 450, IPC and the sentence awarded the them there under are maintained. Their appeal against conviction is dismissed. The reference is accepted and the sentence of death awarded to each of them under section 396, Indian Penal Code is confirmed. It is directed that each of the accused (i) Brij Mohan alias Ram Singh, (ii) Gulla alias Satya Narain and (iii) Barchia be hanged by neck till he is dead. 66. The reference and the appeal shall stand accordingly disposed of.Reference Accepted. *******