G. RADHAKRISHNA RAO, J.

( 1 ) A-1 to A-7 were found guilty of the offence punishable under Section 395 read with Section 397, I. P. C. and were sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 100. 00 (Rs. One hundred only) each in default to undergo rigorous imprisonment for a period of four weeks. Aggrieved by the said conviction and sentence, the present appeal has been filed.

( 2 ) PROSECUTION case is that on the night intervening 13-5-1989 and 14-5-1989 at 2. 30 a. m. , A-1 to A-7 trespassed into the premises of 5th Shaft of S. C. Company at Rudravaram. They were armed with hammers and knives and they caused hurt to P. W. 1, the watchman, and P. W. 2, the Security Guard, and they, after beating P. Ws. 1 to 5, locked them up in the overmen s room. One of them stood guard at the entrance of the overmen s room. The other accused broke open to store room and committed theft of materials worth Rs. 22,250. 00. On 22-5-1989 P. W. 15, the Inspector of Police. Kothagudem, is said to have arrested A-1 to A-7 on the outskirts of Kothagudem and recovered a part of the stolen property from their possession. The identification parade was conducted by the Additional Judicial First Class Magistrate, Kothagudem, P. Ws. 1 to 5 are the direct witnesses.

( 3 ) THERE is no dispute with regard to the evidence of P. W. 1 in particular that he has received injuries. P. Ws. 2 to 5 are the witnesses who were present at that time. The lower Court considered the evidence of the witnesses, the mediators and the reports with regard to the seizure of the articles and found that there was no evidence to prove the recovery. On the mere finding that there is no proof with regard to the recovery of the stolen articles, the accused are not entitled to benefit of doubt, particularly when there is clinching evidence of the injured witnesses, coupled with the complaint Ex. P-2. In the identification parade, P. W. 1 identified A-1, A-3, A-4, A-5 and A-7, P. W. 2 identified A-1, A-5 and A-6, P. W. 3 identified A-4, P. W. 4 identified A-1 and A-3 and P. W. 5 identified A-3 and A-7. That means A-1 and A-3 were identified by three witnesses. A-4, A-5 and A-7 were identified by two witnesses and A-6 was identified by one witness only. P. Ws. 1 to 3, in particular, were able to identify them as they were confined at a particular place itself. So, the identification conducted by the Magistrate has been accepted.

( 4 ) IT is contended that the accused were shown to the witnesses prior to the identification parade.

( 5 ) HAD the accused been shown to P. Ws. 1 to 5 before the identification parade was conducted, they would have identified all the accused, except A-2 who was in the hospital. But, P. Ws. 1 to 5 identified the accused as mentioned supra. This proves that there was no tutoring of the witnesses. Moreover, there is no motive for the witnesses to speak falsehood against the accused; they are not interested witnesses. At the earliest point of time they have given the complaint. The identification parade affords legally permissible evidence. Hence, the identification parade has to be held as correct.

( 6 ) SO far as A-2 is concerned, no identification parade was conducted because he was undergoing treatment in a hospital during the relevant period. In spite of it, there is cogent evidence against him. There is the evidence of P. Ws. 1 to 3 regarding the part played by A-2 in the commission of the offence. Hence, the non-conducting of an identification parade in regard to A-2 is not fatal to the prosecution case.

( 7 ) IT must be remembered that in a case where a number of persons have participated in the commission of an offence and the witnesses identify the accused, the likelihood of mistaken identity also cannot be ruled out. Under these circumstances, five persons were examined as direct witnesses.

( 8 ) IF at least two out of the five witnesses identify the accused, they can be punished, as the recovery is not pr

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