Judgment R.P. Vyas, J.-The instant appeal is directed against the Judgment and order dated 112.2001 passed by the learned Additional Sessions Judge, Nathdwara whereby he has convicted the accused appellants for offence under Section 395, IPC and has sentenced them to undergo 10 years R.I. and a fine of Rs. 2,000/-each and in default to further undergo 1 years R.I. 2. Briefly stated the facts of the case are that on 24.01.1997 Prem Singh lodged an oral report alleging inter alia that he is working at Lavri Petrol Pump for last 3 years. In the night at about 2O clock, since vehicles were not coming for filling up petrol, therefore, they were taking rest in the office. Outside the office, two tankers were lying. In office, cook Kanhaiya Lal, Bhim Singh and Fateh Singh were sleeping. At that time, 5-7 persons wearing pent-shirt and sweater came there and started throwing stones towards the office, due to which the glasses were broken, on this they wake up. The three accused persons came towards them and started beating them with lathi, on which he lifted the lathi and started giving blows to the accused by lathi, on which all the accused fell on him. Two persons started breaking the cash box. It is also alleged that the complainant Prem Singh raised hue and cry, on which neighbourer Shri Bhagwati Prasad Joshi came there. He was also beaten by the accused persons. It was also alleged that the accused persons took away the cash lying in the cash box. It was alleged that the complainant received injuries on his face and hands. The accused persons have taken away a sum of Rs. 10-12 thousand lying in the cash box. 3. On this report, a case under Section 395, IPC was registered and investigation commenced. 4. During the course of investigation, site inspection memo Exhibit P/2 was prepared. The injuries of Prem Singh, Bhagwati Prasad and Sohan Singh were examined and their injury reports are Exhibits P/4 to P/6. During investigation, accused Heera Ram, Nopa, Mohan, Megha, Deva, Kesha and Babu were arrested. After arrest, the accused appellant, Heera Lal gave information (Exhibit P/81) stating that on 24.01.1997 he alongwith his companion committed robbery at Lavri Petrol Pump and he wants to get recovered the robbed articles, namely, cash cloths and watch. On his information, a watch, Rs. During investigation, accused Heera Ram, Nopa, Mohan, Megha, Deva, Kesha and Babu were arrested. After arrest, the accused appellant, Heera Lal gave information (Exhibit P/81) stating that on 24.01.1997 he alongwith his companion committed robbery at Lavri Petrol Pump and he wants to get recovered the robbed articles, namely, cash cloths and watch. On his information, a watch, Rs. 780/-in cash and 3 credit bills were recovered. Similarly at the instance of accused Nopa, Rs. 882/-in cash, one credit card and one shirt was recovered. On the information of accused Mohan, one pent and two shirts were recovered. 5. After investigation, the police filed challan against the accused appellants for offence under Sections 395, IPC 6. Charge for offence under Section 395, IPC was framed against the accused appellants who pleaded not guilty and claimed trial. 7. At the trial, the prosecution examined as many as 37 witnesses in support of its case. The accused in their statement under Section 313, CrPC denied the allegation levelled by the prosecution, but did not choose to lead any defence. 8. At the conclusion of trial, the learned trial Court vide Judgment and order dated 112.2001 convicted the accused appellants for offence under Section 395, IPC. 9. Being aggrieved by his conviction and sentence the accused appellants have preferred the appeal. 10. In this appeal, the main contention of the learned Counsel for the appellants is that the accused persons have not been named in the FIR and in the identification parade only two accused persons i.e., Heera and Nopa have been identified by PW. 1 Prem Singh and rest five accused Appellants have not been identified by any eye-witness. Therefore, conviction of accused appellants 2 to 5 and 7 is absolutely unjustified. It has also been submitted by the learned Counsel for the appellant that even identification of appellants No. 1 and 6 is illegal in as much as identification parade was conducted after a delay of 23 days and during this period, the accused persons were taken to various places for effecting recovery. The learned Counsel for the appellants also submits that in the First Information Report (Exhibit P/1), it has not been mentioned that watches, shirts and pent were also robbed by the accused appellants and no witness has claimed the said articles. Therefore, the recovery of watches, shirts and pent are of no relevance. The learned Counsel for the appellants also submits that in the First Information Report (Exhibit P/1), it has not been mentioned that watches, shirts and pent were also robbed by the accused appellants and no witness has claimed the said articles. Therefore, the recovery of watches, shirts and pent are of no relevance. In the alternative, it has been submitted by the learned Counsel for the accused appellant that even accepting the prosecution story to be true at its highest, no offence is disclosed against the accused Appellants No. 2 to 5 and 7 and, therefore, they are liable to acquitted. So far as accused Appellants No. 1 and 6 are concerned, since, for constituting offence under Section 395, IPC dacoity must have been committed by five or more persons and since in the present case at best offence can be said to be made out against the accused Appellants No. 1 and 6, therefore, their act would not fall under Section 395, IPC but would fall under Section 392, IPC and since the accused appellants are in custody since the year 1997, therefore, for offence under Section 392, IPC they may be sentenced to the period already undergone by them. In support of his case, the learned Counsel for the appellant has relied on the following authorities:- 1999 CrLR (Raj.) 140 - Babu Singh vs. State of Rajasthan. 2000 SCC (Cr.) 93 -Krishna Gopal Singh & Ors. vs. State of U .P. 1990 CrLR (Raj.) 580 - Sunil @ Rakesh vs. The State of Rajasthan. 1989 CrLR (Raj.) 273 - Pamanand vs. State of Rajasthan. 11. On the other hand, the learned Public Prosecutor has supported the Judgment and other passed by the learned Court below and submitted that the same is based on correct appreciation of evidence available on record. Therefore, no interference is called for in the impugned Judgment and order. It has also been submitted by the learned Public Prosecutor that offence under Section 392, IPC is disclosed, then also the sentence awarded by the learned trial Court is absolutely justified as if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen year. Therefore, the appeal filed by the accused appellants be dismissed. 12. Heard and perused the record. 13. Therefore, the appeal filed by the accused appellants be dismissed. 12. Heard and perused the record. 13. In the present case, admittedly, the report (Exhibit P/1) was lodged against unknown persons and the accused persons have been later on arrested and are alleged to have been identified by the witnesses. 14. In this case, PW. 1 Prem Singh is the eye-witness. He has stated that about four years back, he was working at Lavri Petrol Pump. In the night at about 2O clock 6-7 persons came to the petrol pump and started throwing stones towards glasses of the office, due to which glasses were broken. He has further stated that the identification parade was got conducted before a Magistrate and he has identified Nopa and Heera. 15. Thus, from the statement of PW. 1 Prem Singh, it is clear that he has identified only two accused persons namely, Nopa and Heera. 16. PW. 2, Bhupendra Kumar in his statement has stated that he was working at Lavri Petrol Pump. On the day of occurrence, he received the information regarding dacoity over telephone, on which he reached Petrol Pump. He further stated that 5-7 persons have committed dacoity. 17. PW. 3, Bhim Singh in his statement has stated that he alongwith Fateh Singh and Kanhaiya Lal were sleeping in the room. Prem Singh and Bhanwar Singh were in the room. In the night at about 2O clock, he heard the noise of Prem Singh and Bhanwar Singh, on which he came out. When he came out the accused persons starting throwing stones, on which he came inside. He also stated that he can identify the accused by face. 18. PW. 4, Bhagwati Prasad is also eye-witness. He has also stated that his house is situated adjacent to the petrol pump. On hearing noise, he came out of his house, where 5-7 accused persons were standing. He further stated that the accused persons started throwing stones towards him due to which he received injuries. He stated that he could not identify the accused persons. 19. PW. 5, Sohan Singh has also stated that 5-6 persons committed dacoity after breaking the glasses and took away Rs. 10-12 thousand. 20. PW. 8, Vijay Singh in his statement has stated that on 23.01.1997, he alongwith his brother Ratan Singh and Sajjan Singh were sleeping in the room situated behind the petrol pump. 19. PW. 5, Sohan Singh has also stated that 5-6 persons committed dacoity after breaking the glasses and took away Rs. 10-12 thousand. 20. PW. 8, Vijay Singh in his statement has stated that on 23.01.1997, he alongwith his brother Ratan Singh and Sajjan Singh were sleeping in the room situated behind the petrol pump. At 2O clock in the night, he heard the noise, on which they started going out, but the room was locked from outside, on which they slept again. 21. PW. 9, Mangi Lal is the witness to the recovery. PW. 10 is the witness to the site inspection memo as well as foot mould of the accused persons. 22. PW. 11, Bhanwar Singh is the eye-witness. He has stated that on 24.01.1997 in the night, he was sitting in the office. In the night at about 2O clock 6-7 persons knocked at the door of the office. Thereafter, they started throwing stones, due to which glasses were broken. The accused persons came inside and gave beating to Prem Singh. PW. 11 Bhanwar Singh further stated that he ran away towards the room situated behind the petrol pump where other staff members were sleeping and came back after taking the staff member with him, but at that time, the accused persons had gone. He stated that he can identify only one accused. In the Court, he identified the accused Heera as one of the accused. He further stated that identification parade was also conducted by a Magistrate and he identified the accused Heera. In his cross-examination, nothing has come which would could shake his testimony. 23. PW. 12, Fateh Singh in his statement has stated he was working at Lavri Petrol pump. On the day of occurrence, he alongwith Bhim Singh and Kanhaiya Lal were sleeping in the room situated behind the petrol pump. In the night at about 2O clock, he heard some noise, on which he tried to come out of the room, but the room was locked from outside. Thereafter, the other staff members opened the door, but at that time, the accused persons have gone. 24. PW. 13, Sajjan Singh is also an eye-witness. He has stated that on the day of occurrence he alongwith Dilip Singh, Jawan Singh, Nirbhay Singh, Ratan Singh and Vijay Singh were sleeping. Thereafter, the other staff members opened the door, but at that time, the accused persons have gone. 24. PW. 13, Sajjan Singh is also an eye-witness. He has stated that on the day of occurrence he alongwith Dilip Singh, Jawan Singh, Nirbhay Singh, Ratan Singh and Vijay Singh were sleeping. He further stated that on hearing shouts, he came out from the room through window and saw that 5-6 accused persons were committed dacoity. He further stated that the accused persons also beat Bhanwar Singh, Prem Singh and Kanhaiya Lal. He has further stated that he can identify the accused persons and thereafter he identified the accused persons Heera, Kesha, Mohan, Megha and Nopa. In the cross-examination PW. 13 Sajjan Singh has stated that no identification parade was conducted by the police from him. .25. PW. 14, Mangi Lal. PW. 15 Sohan Lal, PW. 16 Krishna Kant, PW. 17 Paras Ram, PW. 18 Roshan Lal and PW. 19 Kalu are the witnesses to the various memos prapared by the police. .26. PW. 20, Dr. M.S. Purohit is the doctor who examined Sohan Singh. .27. PW. 21, Ratan Singh is also an eye-witness. He has stated that he was sleeping at the petrol pump. On hearing shouts, he came out, where accused persons were throwing stones. In the cross-examination this witness has clearly stated that the accused persons were 6-7 in number. .28. PW. 22, Puran Puri is witness to the site inspection memo. 9.29. PW. 23, Shyam Sundar Purohit is the Sub-Inspector. He has stated that on the basis of information of accused Heera Lal under Section 27, the accused Heera Lal was taken “Baparda” to his house where recovery of Rs. 780/-, a watch and three credit bills were recovered. He has further stated that on the basis of information of accused Nopa, Rs. 882/-, credit bill and a shirt were recovered. He has also stated that on the basis of information of accused appellant Mohan, some cloths were recovered. He has further stated that he has got the Baparda identification parade of Heera Ram and Nopa. In the cross-examination, no question has been asked about the identification of accused Heera and Nopa. 30. PW. 24, Bhagwan Lal is the Malkhana Incharge, PW. 25 Mana, PW. 26 Bhanwar Singh, and PW. 27 Jagdish are motbir witnesses. 2.31. PW. He has further stated that he has got the Baparda identification parade of Heera Ram and Nopa. In the cross-examination, no question has been asked about the identification of accused Heera and Nopa. 30. PW. 24, Bhagwan Lal is the Malkhana Incharge, PW. 25 Mana, PW. 26 Bhanwar Singh, and PW. 27 Jagdish are motbir witnesses. 2.31. PW. 28 Kanhaiya Lal alias Kishan Lal is the eye-witness who has stated that he cannot identify the accused persons by face. 32. PW. 29 is the Magistrate who conducted the identification parade. He has stated that on 17.02.1997, he received an application for conducting identification parade of accused Nopa and Heera Ram, on which he passed the order for keeping them “Baparda” He further stated that identification parade was conducted on 19.02.1997 at District Jail Rajsamand. He stated that Prem Singh identified accused appellant Heera Ram and Nopa. Shri Bhanwar Singh also identified accused Heera Ram. He further stated that due care was taken while conducting the identification parade. He also stated that the Jailer has informed him that appropriate steps were taken for keeping Heera and Nopa Baparda. In his cross-examination, PW. 29 has stated that at the time when he entered the jail for conducting the identification parade the accused appellant Heera Ram and Nopa were “Baparda”. 33. PW. 30, Dr. V.P. Jain examined the injuries of Prem Singh. 3.34. PW. 31, Bhanwar Singh Bhati was SHO, Police Station Nathdwara. He in his statement has proved certain documents. 4.35. PW. 32, Jawan Singh, PW. 33 Lalu Ram, PW. 34 Chatra Ram, PW. 35 Chandan Singh, PW. 36, Nawal Singh are motbir witnesses. 5.36. PW. 37 Roop Shankar was the SHO posted at the Police Station Nathdwara on 22.03.1997. He has also proved certain documents. 6.37. From the evidence just mentioned above, one thing is clear that the accused persons were about 6-7 in number. 7.38. The accused persons have not been named in the FIR nor they were known to the witnesses from before. So far as identification parade in concerned, it is also clear that only two accused appellants namely Heera Ram and Nopa were identified. PW . 1 Prem Singh identified accused appellant Heera Ram and Nopa and PW . 11 Bhanwar Singh identified Heera Ram only. No test identification of other accused persons was conducted by the prosecution. 8.39. So far as identification parade in concerned, it is also clear that only two accused appellants namely Heera Ram and Nopa were identified. PW . 1 Prem Singh identified accused appellant Heera Ram and Nopa and PW . 11 Bhanwar Singh identified Heera Ram only. No test identification of other accused persons was conducted by the prosecution. 8.39. Therefore, implication of accused appellant Heera Ram and Nopa is clearly established in this case. That apart the foot moulds which were taken from the place of occurrence also tallied with the foot print of accused appellant Heera which is evident from the foot print report (Exhibit P/6). 9.40. So far as delay in conducting identification of accused appellant Nopa and Heera is concerned, it is submitted that PW. 23 Shyam Sundar Purohit in his statement has clearly stated the accused were kept “Baparda”. PW. 29 Mahendra Kumar Mehta, Magistrate, who conducted the identification parade has also stated that on the application filed by the police, he has directed to keep the accused Nopa and Heera “Baparda”. He has also stated that when he entered the jail for conducting identification parade, the accused appellants Heera and Nopa were “Baparda”. The statement of PW. 23 Shyam Sundar Purohit and PW. 29 Mahendra Kumar Mehta are further corroborated by the statement of PW. 1 Prem Singh who in the cross-examination has clearly stated that he had not seen the accused appellants Heera and Nopa at the Police Station. PW. 11 Bhawan Singh has also identified the accused appellant Heera. 10.41. Recovery of credit bills of Lavri Petrol Pump from the accused appellant Nopa and Heera Ram also connects them with the alleged crime. 11.42. In view of the evidence just discussed above, it is apparent that the prosecution has proved its case beyond reasonable doubt so far as accused appellant Heera Ram and Nopa are concerned. So far as other accused appellants are concerned, they have not been identified by any of the witnesses nor there is any other cogent evidence to connect them with the alleged crime. The prosecution witnesses have simply stated that 6-7 persons came to the petrol pump and committed dacoity. Since, the accused appellants Kesha, Babu, Magha, Mohan and Deva have not been identified by any of the witnesses, they are entitled to get benefit of doubt and are entitled to acquittal for offence under Section 395, IPC. 43. The prosecution witnesses have simply stated that 6-7 persons came to the petrol pump and committed dacoity. Since, the accused appellants Kesha, Babu, Magha, Mohan and Deva have not been identified by any of the witnesses, they are entitled to get benefit of doubt and are entitled to acquittal for offence under Section 395, IPC. 43. It is stated that inspite of acquittal of a number of persons, if it is found as a fact that alongwith the persons convicted under Section 395, IPC, there were other unidentified who participated in the offence bringing the total number of participants to five or more, the conviction of the identified person though less than five is perfectly correct. Similarly view has been taken by the Honble Supreme Court in the case of Saktu vs. State of U.P., reported in AIR 1973 SC 760 and by the Allhabad High Court in the case of Ghamandi & Ors. vs. State, reported in 1970 CrLJ 386. 1.44. In the present case also, from the evidence available on record, it is apparent that the accused appellants Heera and Nopa alongwith 4-5 other persons committed dacoity, but other persons have not been identified, but since this fact is proved that the accused persons were more than 5 in numbers, therefore, the conviction of accused appellants Heera and Nopa is liable to be maintained. The arguments raised by the learned Counsel for the appellant that since the evidence is available only against two accused appellants, therefore, their act would fall under Section 392, IPC is hereby rejected. It is evident from the record that the dacoity has definitely been committed but only two of the accused appellants namely, Heera and Nopa had been identified during the identification parade. 2.45. The learned Counsel for the appellants has relied on the authority of Babu Singh vs. The State of Rajasthan (Supra), in which it has been held that the accused remained in the police custody for four or five days, therefore, the possibility of his being shown to the aforesaid witnesses cannot be altogether eliminated. In the present case, as stated above, from the evidence available on record, in particular statement of PW . 1 Prem Singh, PW . 23 Shyam Sunder Purohit and PW . In the present case, as stated above, from the evidence available on record, in particular statement of PW . 1 Prem Singh, PW . 23 Shyam Sunder Purohit and PW . 37 Roop Shankar, it is established that the accused appellants Heera and Nopa were kept “Baparda” and were not shown to the witnesses before identification parade, therefore, the delay in conducting test identification parade is not fatal to this case. 3.46. The learned Counsel for the appellants has also relied on the case of Krishna Gopal Singh & Ors. vs. State of U.P., reported in 2000 SCC (Cr.) 93, in which it has been held that Section 395, IPC is applicable only when an offence under Section 390 is made out and the number of assailants reaches the statutory minimum. This authority would also not be helpful to the learned Counsel for the appellants as in the present case, from the evidence available on record, it is established that number of accused who participated in the offence was more than 5 and number of accused has reached the statutory minimum. 4.47. The learned Counsel for the appellants has also relied on the case of Parmannad vs. State of Rajasthan (Supra), in which for offence under Section 394, IPC, the sentence awarded to the accused appellant was reduced. In this connection it may be stated that in the present case looking to the gravity of offence proved against the accused appellants Heera Ram and Nopa, the sentence of 10 years is absolutely justified, particularly in view of the fact that the maximum sentence provided for offence under Section 395, IPC is imprisonment of life. Therefore, no interference is called for in the order of sentence passed by the learned Court below. 5.48. For the reasons mentioned above, the appeal of the accused appellants Kesha, Babu, Megha, Mohan and Deva is allowed and they are acquitted of offence under Section 395, IPC by giving them benefit of doubt. The appeal of accused appellants Heera Ram and Nopa is dismissed and conviction and sentence awarded to the accused appellant Heera Ram and Nopa for offence under Section 395, IPC are maintained. 6.49. The Judgment and order dated 112.2001 passed by the learned Additional Sessions Judge, Nathdwara is modified to the above extent. 7.50. The appeal of accused appellants Heera Ram and Nopa is dismissed and conviction and sentence awarded to the accused appellant Heera Ram and Nopa for offence under Section 395, IPC are maintained. 6.49. The Judgment and order dated 112.2001 passed by the learned Additional Sessions Judge, Nathdwara is modified to the above extent. 7.50. Since, the sentence of accused appellants Kesha, Babu, Megha, Mohan and Deva were suspended by this Court vide order dated 06.05.2002 and they are on bail, they need not surrender. Their bail bonds stand discharged.