The tender of pardon without the sanction of the District Magistrate is in direct contravention of the terms of the proviso to section 337 and, therefore, was illegal.

( 1 ) THE appellants are the accused in Sessions Case No. 12/8 of 1956 on the file of the Court of the Sessions Judge, Mahaboobnagar. They were convicted under section 395, Indian Penal Code and accused I was sentenced to rigorous imprisonment for life and the rest to 10 years rigorous imprisonment and to a fine of Rs. 500 each.

( 2 ) SHORTLY stated, the prosecution case is as follows : the accused, along with three others, committed dacoity in the house of Billakanti lingayya of Bondalapalli on the intervening night of 1st and and March, 1956, between II P. M. and 12 midnight. That day, the said Lingayya had gone to some other village and the women-folk of the house had gone to see some dramatic performance during their absence, after inflicting injuries on the inmates, they took away cash, currency notes, gold and silver ornaments and other articles worth about rs. 50,000. The learned Sessions Judge, after carefully considering the evidence, held that the accused committed dacoity in the house of Lingayya on the intervening night of the 1st and 2nd of March, 1956 and convicted them as aforesaid. The evidence was considered by the learned Judge under the following heads : (i) eye witnesses, who were present in the house at the time of the occurrence, (ii) recovery of property from the possession of the accused, (iii) identification of the property, the subject-matter of the dacoity, (iv) possession and ownership of the property, (v) evidence of the approver who was present at the time of the dacoity and (vi) identification of the accused by the eye-witnesses in the identification parade. The learned Judge practically accepted the entire evidence produced by the prosecution and rejected that adduced by the defence under the various heads.

( 3 ) LEARNED counsel appearing for the accused contends that the eye-witnesses cannot be believed or, at any rate, they were not in a position to identify the accused, that the parades wherein the accused are alleged to have been identified were a mockery inasmuch as the witnesses had every opportunity to see the accused before-hand and indeed, as a matter of fact, they saw them before they actually identified them in the parade, that the discovery of the various articles in the houses of the different accused was brought about by the Police by implanting some of the articles in their houses that the identification of the articles so discovered as those of lingayya was irregular as the jewels, etc. , were shown to the witnesses for identification instead of mixing them with other similar articles and asking the witnesses to identify those of Lingayya and that the approver s evidence was inadmissible as the pardon was given to him in direct contravention of the provisions of section 337 of the Criminal Procedure Code.

( 4 ) WE shall first consider the evidence of the witnesses, who are alleged to have been present in the house of Lingayya at the time the dacoity was committed. P. W. 14 is one Veerayya. Lingayya s daughter is married to his son. He speaks to the prosecution version in detail. He describes the incident thus: Narayana and Bucheyya slept in the bunk and Lakshmiah, Nariga and the witness were in the central hall. As the door of the hall was chained inside and as they did not open the door, the accused took out the planks of the door and entered the hall. After entering the hall, they beat the witness, Lakshmiah and Nariga. When questioned, the witness and others also stated that they did not know where the iron safe was. Thereafter, they opened the door of the room where the iron safe was kept. There were two or three yekkas and the accused lighted them. They made the witness, Lakshmiah and Nariga to sit in the central hall near the door of the room where the iron safe was kept and brought Nariga and Bucheyya into the room near the safe. After breaking open the safe with a crow-bar, the various ornaments and cash were put in the several bags carried by the accuse