Judgment V. K. BALI, J. ( 1 ) BY this common order, we propose to dispose of two connected criminal Appeals bearing No. 315/2001 filed by Shiv Charan, Rati Ram, Asha Ram, dharam Singh and Mahaveer Singh as also criminal Appeal No. 629/2001 filed by Rati ram through Jail, as the same emanate from a common impugned order of conviction and sentence dated 7-5-2001 recorded by the learned Additional Sessions Judge, No. 2 sikar. All the five appellants who faced trial under various sections have since been held guilty for an offence under Section 395/149, ipc and sentenced to undergo rigorous imprisonment for ten years as also to pay fine of Rs. 500/- each and in default of payment of fine to further undergo simple imprisonment for a period of one month. Under Section 396/149, IPC to undergo life imprisonment as also to pay fine of Rs. 500/- each and in default of payment of fine, to further undergo simple imprisonment for one month. They have also been held guilty for an offence under Section 148, IPC to undergo rigorous imprisonment for one month as also to pay fine of Rs. 100/- each and in default of payment of fine, to further undergo simple imprisonment for one month. They have also been held guilty for an offence under Section 458, IPC to undergo rigorous imprisonment for five years as also to pay fine of Rs. 500/- each and in default of payment of fine, to further undergo simple imprisonment for one month. ( 2 ) MAHAVEER Singh has separately been held guilty for an offence under Section 3/25 of the Arms Act to undergo rigorous imprisonment for one year as also to pay fine of Rs. 500/- each and in default of payment of fine, to further undergo simple imprisonment for one month. ( 3 ) THE appellants as per prosecution version are said to have caused death of one and injuries to others while committing dacoity on the intervening night of 12/13th may, 1999 at 2. 30 a. m. First Information report with regard to incident came to be lodged by Rajendra Prasad, injured P. W. 1 at 3. 15 a. m. on 13th May, 1999. His state-ment was recorded by Mr. Girdhari Lal, ASI p. W. 31. It is on the statement made by rajendra Prasad P. W. 1 that formal FIR Ex. 30 a. m. First Information report with regard to incident came to be lodged by Rajendra Prasad, injured P. W. 1 at 3. 15 a. m. on 13th May, 1999. His state-ment was recorded by Mr. Girdhari Lal, ASI p. W. 31. It is on the statement made by rajendra Prasad P. W. 1 that formal FIR Ex. P. 52 came to be registered at 4. 00 a. m. on 13th May, 1999. Special report with regard to incident reached the concerned Magistrate at 11. 45 a. m. The statement made by rajendra Prasad P. W. 1 before Girdhari Lal asi P. W. 31 when translated into English would read as follows :-"stated that today on 13th May, 1999 at about 2. 30 a. m. in the morning when I and my wife Rameshwari were sleeping in the room of their house (Dhani), there was commotion outside upon which I and my wife got up. Outside, a lot of hue and cry was going on and when I was about to come out the rogues who were five or six in number came and started beating me with iron rods and sticks. They did not permit me and my wife to go out of the room. The electric light was on in my room. These rogues had torches in their hands. Three persons were wearing pant and T-Shirts and they were time and again threatening that they should tell us where was the money as otherwise we would be killed. One of them took out a pistol and he was threatening us. My wife was beaten and thrown outside and she was crying. They broke open the cupboard of my house and took out cash and jewellery from a box by breaking it. The details of Jewellery is known to my wife who would give details thereof later. They then dragged me and brought me outside the house. I then saw that my father had been belaboured who was not speaking. I then came to know that because of giving beatings by rogues my father has died. They also broke open the box of my mother Dhoori and took out belongings from it. These rogues were five or six in numbers. Out of them two had beaten my father outside. I will give list of looted articles after sometime. I then came to know that because of giving beatings by rogues my father has died. They also broke open the box of my mother Dhoori and took out belongings from it. These rogues were five or six in numbers. Out of them two had beaten my father outside. I will give list of looted articles after sometime. The small bag which was lying in my box contained my photo and an amount of Rs. 10,000/-, they took away also. All these people were of black complexion and were wearing half green shirt and white pants. They were of the age of about 39 years. From their inter se talks, they appeared to be belonging to U. P. They had given beating to my wife and my mother. My father was killed by these rogues and I had brought the injured persons to hospital in a jeep. " ( 4 ) THE prosecution led sufficient evidence to prove that father of the first informant-Heera Lal died because of injuries sustained by him. His post-mortem report (Ex. P. 68)has been proved. Post-mortem of the dead body was conducted on 13th May, 1999 at 8. 30 a. m. His dead body was found to have contained injuries which were by blunt weapon. The cause of death was stated to be head injury which was grievous in nature. The prosecution also proved that rameshwari wife of Rajendra Prasad, P. W. 16 had sustained five injuries by blunt weapon which were simple in nature. The medico Legal report has been proved as (Ex. P. 70 ). She was medico legally examined on 13th May, 1999 at 8. 00 a. m. Dhoori wife of deceased-Heera Lal was found to have sustained six injuries which were simple inc nature. The prosecution proved her Medico legal report as (Ex. P. 69 ). She was medico legally examined on 15th May, 1999 at 2. 45 p. m. ( 5 ) APPELLANTS-SHIV Charan, Asha Ram, dharam Singh and Mahaveer Singh were arrested on 13th May, 1999. Whereas, Shiv charan was arrested at 4. 30 p. m. Asha Ram was arrested at 7. 00 a. m. Dharam Singh was arrested at 4. 45 p. m. and Mahaveer Singh was arrested at 7. 30 a. m. Appellant-Rati ram was arrested on 16th May, 1999. The arrest memos of the appellants-Shiv Charan (Ex. P. 21), Rati Ram (Ex. Whereas, Shiv charan was arrested at 4. 30 p. m. Asha Ram was arrested at 7. 00 a. m. Dharam Singh was arrested at 4. 45 p. m. and Mahaveer Singh was arrested at 7. 30 a. m. Appellant-Rati ram was arrested on 16th May, 1999. The arrest memos of the appellants-Shiv Charan (Ex. P. 21), Rati Ram (Ex. P. 26), Asha Ram (Ex. P. 45), Dharam Singh (Ex. P. 20) and mahaveer Singh (Ex. P. 46), have since been proved. The prosecution proved recovery of rs. 2,250/- and some silver jewellery from shiv Charan on the very day of occurrence. The recovery witnesses Raghu Nath Prasad p. W. 12 and Bhaga Ram P. W. 13 proved the recovery effected from him. The police also recovered lathi (Ex. P. 29) from him on 24-5-1999 at 11. 45 a. m. Motiram P. W. 20 and kajod P. W. 21 proved the recovery of lathi. This lathi was proved pursuant to statement made by Shiv Charan (Ex. P. 60) on 18-5-1999. His finger prints lifted from the place of occurrence matched with finger prints which were taken and the same matched. In so far as appellant-Rati Ram is concerned, jewellery vide recovery memo (Ex. P. 23) was recovered from him. Kishore P. W. 14 and ramavtar P. W. 15 proved the recoveries effected from him on 20-5-1999 at 12. 30 p. m. pursuant to disclosure statement (Ex. P. 31)made by him a lathi was recovered from him on 24-5-1999 at 10. 30 a. m. The recovery witnesses Moti P. W. 20 and Kajocl P. W. 21 proved the recovery of lathi. His finger prints lifted from the scene of occurrence tallied with his finger prints. Asha Ram got recovered a bag (Ex. P. 15) as also an amount of rs. 2,600/- and some jewellery. Suresh and nanag Ram proved the recovery of bag from him on 24-5-1999 at 9. 05 a. m. Pursuant to disclosure statement made by him a lathi (Ex. P. 30) was recovered from him on 24-5-1999 at 11. 30 a. m. Moti Ram P. W. 20 and kajod P. W. 21 proved the recovery of lathi. Finger prints lifted from the spot tallied with his finger prints. Appellant-Dharam Singh pursuant to disclosure statement (Ex. P. 19)made by him got recovered Rs. 2,400/- and some jewellery. P. 30) was recovered from him on 24-5-1999 at 11. 30 a. m. Moti Ram P. W. 20 and kajod P. W. 21 proved the recovery of lathi. Finger prints lifted from the spot tallied with his finger prints. Appellant-Dharam Singh pursuant to disclosure statement (Ex. P. 19)made by him got recovered Rs. 2,400/- and some jewellery. Raghu Nath P. W. 23 and bewga Ram P. W. 13 proved the said recovery effected from him on 13-5-1999 at 4. 45 p. m. Finger prints lifted from spot tallied with his finger prints. Appellant-Mahaveer singh pursuant to his disclosure statement got recovered a country made gun (Pistol) (Ex. P. 16) which was proved by Suresh kumar and Nanag Ram P. W. 17 and P. W. 7 respectively. Mahaveer Singh also got recovered a lathi (Ex. P. 28) on 24-5-1999 at 11. 45 a. m. Moti Ram and Kajod P. W. 20 and P. W. 21 proved the recovery of lathi from him. Some looted articles were recovered vide recovery memo (Ex. P. 47) on 13-5-1999 at 7. 30 a. m. The police also recovered a lathi and a country made gun (pistol) vide recovery memos (Ex. P. 63 and Ex. P. 64)respectively from him on 18-5-1999 at 7. 00 p. m. and also on 24-5-1999 at 8. 15 a. m. respectively. Finger prints lifted from the place of occurrence tallied with his finger prints. ( 6 ) ALL the appellants were identified by first informant Rajendra Prasad, Dhoori Devi and Smt. Sohani P. W. 1, P. W. 3 and P. W. 5 respectively who were themselves injured in the incident. Sua Lai eye-witness examined as P. W. 6 also identified the appellants in the test identification parade supervised by acjm Shri Chirjanji Lal P. W. 26. The articles which were looted from these people were also identified by the witnesses in the identification of articles conducted by Shiv singh Tehsildar, who was examined as P. W. 27. ( 7 ) WE are not giving further details of the evidence nor are making a mention of the cross-examinations of the witnesses by which the prosecution proved arrest, recoveries, matching of finger prints and identification of appellants of the property as learned counsel for the appellants has not urged anything to find faults in the way and manner the above things were proved by the prosecution. The occurrence, it may be recalled had taken place at 2. 30 a. m. on the intervening night of 12/ 13th May, 1999. FIR was lodged in a matter of 45 minutes from the time of incident and as the luck would have it, all the appellants were arrested on the date of occurrence. Rati Ram as mentioned above, was however, arrested on 16-5-1999. The police was able to effect recoveries of articles robbed from the complainant party either on the same very day or shortly thereafter. So much so, the police was able to effect recoveries of weapons used by the appellants on the very day of occurrence or shortly thereafter. Test identification parade was arranged on 28-5-1999, the robbed articles were identified on 21-6-1999. It appears to us that in impressive array of facts as fully detailed above, learned counsel for the appellants has not able to pick up any infirmities and for that reason it further appears that no arguments in the matter of arrest, recoveries and identification of articles, identification of appellants themselves and matching of finger prints found at the scene of occurrence have been raised before us. It appears to be open and shut case. In the impregnable fortress built by prosecution around the evidence mentioned above, there does not appear to be any scope for even a pin to go. ( 8 ) MR. Biri Singh learned counsel for the appellants however rightly contends that having been held guilty for offence under S. 396,1. P. C. there was no scope to separately convict the appellants under S. 395 as well. He also contends that the conviction of the appellants under S. 148, I. P. C. is also illegal. We find merit in the aforesaid contention. Section 395, I. P. C. provides punishment for dacoity, whoever commits dacoity shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to 10 years, and shall also be liable to fine. S. 396, I. P. C. is a more heinous crime. It provides punishment when dacoity is committed with murder. If anyone 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. It provides punishment when dacoity is committed with murder. If anyone 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. When while committing dacoity, murder is also committed, the punishment in our view would be provided under S. 396, I. P. C. In other words, S. 396, I. P. C. includes in itself, the ingredients of punishment for offence under S. 395, I. P. C. Section 396 is a magnified version of S. 395 as murder is also committed while committing dacoity. If, therefore, accused is held guilty for an offence under S. 396, I. P. C. and convicted accordingly he cannot be convicted under s. 395, I. P. C. also. The conviction of the appellants under S. 395 is set aside. There was no applicability of S. 148, I. P. C. in the present case. The conviction of appellants under S. 148, I. P. C. is also set aside. But for the modification with regard to conviction of the appellants under Ss. 395 and 148, i. P. C. the order of conviction and sentence recorded by the learned Addl. Sessions judge, No. 2 Sikar dated 7-5-2001 is upheld and the appeals filed by the appellants are dismissed being totally devoid of merits. Appeals dismissed.