Judgment

FAZAL ALI, J.:- By our Order dated february 15, 1985 we dismissed these appeals and upheld the convictions of the appellants but reduced the sentence in respect of all the appellants to seven years rigourous imprisonment. We now proceed to give our reasons for the said Order.

2. In criminal appeals Nos. 41 and 42 of 1974, the High Court convicted and sentenced three appellants to ten years R. 1. and convicted and sentenced the other five accused, who were acquitted by the Sessions Judge, to eight years R. 1. under S. 395 of the Indian Penal Code. The facts of the case have been exhaustively narrated in the judgment of the Sessions Judge and the High Court and it is not necessary for us to repeat the same which will amount to an exercise in futility.

3. The narration of the facts by the Courts below clearly shows that all the accused persons committed dacoity in the houses of the committed dacoity in the houses of the complainants one after the other in quick succession and looted and bolted away with various kinds of property in the nature of watches, ornaments, etc. The admitted facts further show that the accused persons were not local persons but are alleged to have come from Delhi for the purpose of committing dacoity at the places of occurrence. Another important fact which might be highlighted at this stage is that it, would appear that the nature and character of the dacoities are based on a common pattern and in all the three places where the dacoity was committed, the modus operandi seems to be the same. Even the recoveries made at the instance of the accused persons during the course of also show a clear and close link between the form and the manner of the dacoities.

4. The only questions with which we are concerned are ;

1) question of identification of the dacoits who are said to have committed dacoities in three places one after the other in quick succession, and

2) recovery of various articles made at the instance of the accused in the presence of panch witnesses.

5. It is manifest that the evidence furnished by the recovery of various articles at the instance of and on being pointed out by the accused is fully corroborated by the witnesses, in whose presence the recoveries were made, and all of them have signed the panchnamas.

6. As regards the first plank of the prosecution caw regarding identification, there appears to be a good deal of difference of opinion between the trial Court and the High Court. The admitted facts are that the dacoits entered the premises of the complainants and tried to conceal their faces by tying pieces of cloth but even so some of them were identified by some of the witnesses. The Sessions Court, however, completely rejected the evidence regarding identification as not being above board. The Sessions Judge has opined that as the dacoits had concealed their faces, it was not possible for the witnesses to have identified them even if there was electric light in the house. The learned Judge further relied on the fact that even in Test Identification Parade, held soon after the occurrence, no precaution were taken to mix the accused with persons having similar features in order to test the observational powers of the witnesses. He further held that there is some evidence to show that all the accused were taken round the police station and other places and the possibility of their having been seen by the witnesses cannot be reasonably excluded. The High Court, however, took a contrary view and accepted the identification by some of the witnesses which seem to be consistent in that the accused were identified by them in the T. I. Parade and in the Court as well. Thus, the High Court held that despite the infirmities in the evidence about identification, the testimony of some of the witnesses was free from blemish. In the circumstances, we do not consider it necessary to go into the pros and cons or truth or falsity of this aspect of the matter regarding which the two Courts below have di