JUDGMENT 1. - This petition under Section 482 Cr. P.C. has been filed by the five accused persons, being aggrieved against the order dated 19-4-90 by which they have been charged under Section 396 I.P.C. by the Additional District & Sessions Judge, Bundi, in Sessions Case No. 77/89. 2. The facts of the case are that in the intervening night of 13th & 14th February, 198", a dacoity was committed at the house of one Moharpai in village Bishanpura. It is alleged that in the process of committing the dacoity one Chhotu Lal sustained injuries from Pellets which resulted in his death. 3. The prosecution case further is that the miscreants took away three thousands rupees also. A report of the incident was lodged on 14-2-88 at Police Station, Lakheri. Disft. Bundi. The police registered a case vide F.I.R. No. 16/88 under Section 395 and 396 I.P.C. After registration of the case, police went to the spot, prepared the site plan and also recovered empty cartridges, pellets etc. from the dead body of the Chhotulal, also, pellets were taken out. The police recovered a country made pistol (Katta) from the accused petitioner Chandrapal on his information under Section 27 of the Evidence Act. The statement of the eye witnesses were recorded. After completing the investigation the police submitted a charge-sheet against all the five petitioners. 4. The contention of the learned counsel for the petitioners is that it is a case of no evidence, as such, the learned Additional Sessions Judge should not have framed charge under Section 396 I.P.C. against any of the petitioners. According to the learned counsel, out of eight eye witnesses, the police got identified all the accused petitioners in the identification parade from the witnesses Moharpai and Badri only and none of them identified any of the accused persons. The remaining eye-witnesses did not participate in the identification parade. Thus, according to the learned counsel for the petitioners, there is no evidence of identification against any of the petitioners. He further submits, that in the absence of evidence of identification in prior identification parade, even if the witnesses try to identify any of the petitioners in the court that evidence is meaningless. He further submits that except the petitioner Chandrapal, no incriminating article has been recovered from the possession of any of the petitioners, including the looted property i.e. currency notes of rupees three thousand. He further submits that except the petitioner Chandrapal, no incriminating article has been recovered from the possession of any of the petitioners, including the looted property i.e. currency notes of rupees three thousand. The learned counsel for the petitioners has placed reliance on Union of India v. Prafulla Kumar Samal and another (A.I.R. 1979, Page 366 ) and Kailash & Ors. v. State of Rajasthan (1982 Criminal Law Reporter, Rajasthan, Page 113 ). 5. Contrary of this, the learned Public Prosecutor submits that so far Chandiapal accused-petitioner is concerned, there is evidence against him that a country made pistol (katta) has been recovered on his information and r Section 27 of the Evidence Act. He further submits that the pellets have been recovered from the dead body of Chhotulal and the pistol as well those pellets were sent to Forensic Science Laboratory for examination and there is a definite opinion that one pellet, which was taken out from the dead body of Chhotulal was fired from the country made pistol (katta) which was recovered from the petitioner Chandrapal. The learned Public Prosecutor frankly admitted before me that there is no evidence of recovery of any article against any other accused petitioners and further the two witnesses, who were asked to identify the accused persons in identification parade could not identify any of them, while the remaining eye witnesses did not participate in the identification parade. The learned Public Prosecutor submits that it was perhaps due to the fact that those witnesses have admitted in their statements recorded under Section 161 Cr.P.C. that they could not properly identified the miscreants at the time of the incident. 6. I have given my thoughtful consideration to the rival contentions made by the learned counsel. I have also perused the entire record, including the statements of the witnesses. It is true that against the order framing charge , this court should be very slow to interfere while exercising powers under Section 482 Cr.P.C. It is also true that at this stage no appreciation of evidence should be made. 7. Whether there is a prima facie case against the accused persons or not, depends upon the facts of each case. At this stage the Court should examine the broad possibilities of the case, the total effect of the evidence and documents produced before the court. 7. Whether there is a prima facie case against the accused persons or not, depends upon the facts of each case. At this stage the Court should examine the broad possibilities of the case, the total effect of the evidence and documents produced before the court. The Apex Court of this country considered the scope of appreciation of evidence at the stage of framing charge and the test to be applied in Union of India v. Prafuila Kumar Samal and another (A.I.R. 1979, Page 366 and laid down the following principles in para No. 10: "Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out: (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but no: grave suspicion against the accused, be will be fully within his right to discharge the accused. (4) That in exerting his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should made a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." In Kailash & Ors. This however does not mean that the Judge should made a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." In Kailash & Ors. v. State of Rajasthan (1982, Criminal Law Reporter Rajasthan Page No. 113 ) this Court observed ; "Sufficient ground for proceeding" under Section 227 Cr.P.C. means that there must be prima facie case against the accused and the evidence should be such that if it remains un-rebutted, there are chances of the conviction of the accused. In the instant case there is solitary statement of Nirmala and so far as the medical evidence is concerned, it is clearly to the effect that both the accused petitioners are not capable of sexal intercourse. I am, therefore, of the opinion that it was such a case in which on the material on record, the learned Sessions Judge should have come to a conclusion that there are no grounds for proceedings against the accused persons under Section 376 IPC." 8. Applying the aforesaid test and taking into consideration the entire material on record, I find that so far the petitioner Chandra Pal is concerned there is evidence against him. A country made pistol has been recovered from his possession on hS information under Section 27 of the Evidence Act and the said pistol has been connected with the crime pellet recovered from the dead body of Chhotulal deceased. Whether the said evidence is sufficient or not to be finally decided by the trial Court. Hence, his case is distinguishable to that of other co-accused persons. 9. So far the remaining accused-petitioners are concerned, neither there is evidence of recovery of any incriminating article from their possession or at their instance, nor they have been identified by any of the witnesses, who participated in the identification parade. The remaining eye witnesses, who did not participate in the identification parade, have stated in their statements under section 161 Cr.P.C. that they could not properly identify the miscreants. Therefore, in the absence of prior identification parade, their evidence in the court shall not be sufficient to connect any of the petitioners. Thus, there remains no evidence against the accused-petitioners Shiv Gopal, Bansgopal, Jagdish alias Bhopal alias Fauzi and Ramniwas, hence the order of framing charge under Section 396 IPC against them is liable to be set aside. 10. Therefore, in the absence of prior identification parade, their evidence in the court shall not be sufficient to connect any of the petitioners. Thus, there remains no evidence against the accused-petitioners Shiv Gopal, Bansgopal, Jagdish alias Bhopal alias Fauzi and Ramniwas, hence the order of framing charge under Section 396 IPC against them is liable to be set aside. 10. Consequently, this petition is partly allowed. The order of framing charge against the petitioner Chandra Pal is maintained, but the order of framing charge against the remaining accused-petitioners, namely, Shiv Gopal, Bansgopal, Jagdish alias Bhola alias Fauzi and Ram Niwas is quashed and set aside.Petition partly allowed. *******