Judgment

MISRA, J. :- The present appeal by special leave is directed against the judgment of the High Court of Patna dated 8th November, 1974 whereby the appeal of the appellants was allowed in part and their conviction under Section 395, I. P. C. was set aside, and instead the appellants were convicted under Section 394 I. P. C. and sentenced to rigorous imprisonment for four years.

2. The appellants along with three others were committed to the Court of Session to stand their trial for an alleged offence under Section 395, I. P. C. in connection with a robbery committed in the house of Harihar Prasad Singh, P. W. 2. At the relevant time Harihar Prasad Singh was posted as an Assistant Sub-Inspector of Police at Udwantnagar Police Station in the district of Arrah. He had his residential quarters in the compound of the police station, Udwantnagar. On the night of 2nd and 3rd May, 1968 he was sleeping in the outer room of his quarters. His wife and younger son, Ashok Kumar were sleeping on a chauki in the courtyard, At about 2 a.m. in the night Harihar Prasad Singh woke up on hearing an alarm raised by his wife of thief-thief. He went inside the courtyard and found a person opening the door. He caught hold of him by the waist. In the meantime five to seven persons entered the courtyard and began to assault him with lathis. One of them hit him with a lathi on his forehead. Other persons also assaulted him. On receiving injuries he fell down. In the meantime his wife and son went to the southern room, in which his younger brothers wife (Bhawah) was sleeping, to conceal themselves and tried to close the door leaves but they could not succeed because three of the miscreants broke into the room by pushing it. Then they came out of the room and began to raise alarm. The dacoits took out four boxes from that room. One box contained utensils etc. and the other contained woolen and cotton clothes. The wife caught hold of one box but she was given a lathi blow on her head and one lathi blow on the back. The dacoits thereafter decamped taking two of the boxes. In response to the alarm, the officers of the police station viz., sub-inspector Ganesh Singh, Assistant Sub-Inspector Khanderan Singh and three constables Ganga Singh, Moinuddin Khan and Ram Bahadur arrived at the place of occurrence and they chased the dacoits for some distance but in vain. Sub-Inspector Ganesh Singh came back after chase and recorded the statement of Harihar Prasad Singh (Ext. 2).

3. Harihar Prasad Singh was taken to the hospital at Arrah for treatment. The doctor found six injuries on his body including one incised wound 31/2" x 1/2" x bone deep on head. Smt. Champa Devi, wife of Harihar Prasad Singh, was also examined and the doctor found one lacerated wound 3" x 1/2" x bone deep, on the head.

4. From the first information report it appears that the dacoits were unknown persons. Therefore, two identification parades were held, one on 8th May, 1968 by Shri Yogendra Nath Jha, P. W. 7, and the other on 24th May, 1968 by Shri S. M. Mukherjee, P. W. 6. In the first identification parade constable Moinuddin Khan P. W. 3, identified Ramadhar Ahir, appellant No. 3. In the second identification parade Harihar Prasad Singh, P. W. 2, identified Bali Ahir and Chain Ahir, appellant Nos. 1 and 2 respectively. Khaderan Prasad Singh, P. W. 4, identified Bali Ahir, Chain Ahir and Ramadhar Ahir, appellants Nos. 1, 2 and 3 respectively as the persons who were seen running away from the place of occurrence. Moinuddin Khan, P. W. 3, identified Bali Ahir and Chain Ahir, appellants 1 and 2. Prosecution witness Nos. 2, 3 and 4 identified the appellants in Court also,

5. The trial Court relying on the evidence of identification by the aforesaid witnesses convicted the appellants under Section 395, I. P. C. and sentenced them to rigorous imprisonment for eight years. It, however, gave benefit of doubt to the remaining three accused and acquitted them.

6. On appeal by the appellants the High C