JUDGMENT

These appeals are filed under section 379 of the Code of Criminal Procedure. These five appellants along with two others were tried for offences punishable under sections 395, 397 and 449 of the Indian Penal Code. Two of them were tried under section 25 read with Section 27 of the Arms Act. Mithilesh was tried for offences punishable under sections 216 and 412, I.P.C. The trial Court acquitted all of them. The State preferred an appeal. During the pendency of the appeal the two accused Devi Singh and Kishore Singh died and the appeal against them stood abetted.

2. The High Court, however, relying on the evidence of the eye-witness who participated in the indentification parade and the recovery effected allowed the appeal and set aside the acquittal and convicted Mansingh, Rati Ram, Narayan Singh and Shiv Ratan under sections 395/397 and 449, I.P.C. and sentenced each of them to undergo rigorous imprisonment for ten years under each count. Rati Ram was further convicted under section 25 read with Section 27 of the Arms Act and sentenced to undergo three years rigorous imprisonment. Mithilesh was convicted under section 412, I.P.C. and sentenced to undergo five years rigorous imprisonment. His acquittal under section 216 was affirmed. Sentences were directed to run concurrently.

3. Aggrievd by the said judgment of the High Court the convicted accused have preferred these two appeals. The prosecution case is as follows:

On the night of 11-11-78 at about 11 p.m. there was a dacoity with murder in the house of Premchand (P.W.22) in Village Hardi, within the limits of Gadhakota Police Station, District Sagar. It is alleged that the dacoits removed gold and silver ornaments and cash of Rs. 500/- total valued at Rs. 22,465/- by breaking open the box and the safe. On the ground floor, Nathuram and Jagrani parents of the complainant, were sleeping and they were first assaulted. On the first floor, complainants sister-in-law Rajrani was killed with a Katarna. The complainant saw the incident from the second floor. Dacoits were unknown to the witnesses. After committing the looting the dacoits left the place. Premchand went and lodged a report (Ex. P-42) in the Police Station. The injured Nathuram and Jagrani were admitted in the Hospital. Rajrani also received injuries and she died. In post-mortem examination it was found that she died because of the incised wound cutting mexilla bone. Nathuram had 23 injuries including fracture of right forearm. The prosecution examined P.Ws. 17 and 18 who receive pellet injuries and Jagrani who received one lathi injury. On receipt of the information P.W.23, P.S.I. reached the scene of the occurrence and prepared a Panchanama and effected some recoveries. He took into custody Mansingh in Village Sewda and the other accused were also arrested on different dates after the expiry of three months and some more recoveries were effected. A panchanama was drawn in respect of the recoveries and the recovered articles were identified as those belonging to the complainant.

4. An indentification parade was held on two dates namely 16-3-79 and 30-3-79. The accused were said to have been identified by the eye-witnesses. On 4-4-79 another identification parade was held in respect of the articles recovered and they were said to have been identified by P.Ws.2,17 and 22. The trial Court acquitted the accused holding that identification of the persons as well as of the articles was doubtful.

5. In the appeal the High Court examined the proceedings of the indentification parades and accepted the same. The High Court also accepted the prosecution case regarding the recovery of the stolen articles and accordingly convicted the accused as stated above.

6. In these appeals Shri Ranjit Kumar, learned Counsel for the appellants submits that the dacoity took place during night time and the assailants were totally strangers to the victims and they were arrested after a lapse of three months and identification was held again 22