JAS RAJ CHOPRA, J.

( 1 ) - This is a jail appeal against the judgment of the learned Sessions Judge, Udaipur dated January 31, 1987, whereby the learned Sessions Judge has held the accused appellant Babuda guilty under sections 397, 380 and 451, I. P. C. and sentenced him to seven years rigorous imprisonment on the first count, two yearst rigorous imprisonment with a fine of Rs. 50/- on the second count and one years rigorous imprisonment together with a fine of Rs. 50/- on the third count.

( 2 ) THE facts giving rise to this appeal, briefly stated, are that in the night intervening between 13th and 14th of September, 1985, complainant Galla and his wife Smt. Fagnu were sleeping in one kothe of their house and his mother was sleeping in the outer portion of the house, locally Patsal (Patal),it is alleged that three persons, armed with at his entered the house of Galla gave beating to Smt. Banni, mother of Galla and snatched her silver Hansali and Zoolki. On hearing her cries, her son Galla came there. He too was beaten. Gallas wife Smt. Fagnu did not intervene and so she did not receive any injury. It is alleged that Smt Banni identified one of the accused, namely, the appellant Babuda in the torch light which was flashed by the accused persons on her face. It is further alleged that Smt. Banni became unconscious as soon as she received the injury on her head and she regained consciousness only in the hospital. A report of the incident was lodged at Police Station, Bakariya, which has been marked Ex. P. 7 and on the basis of which the First Information Report was drawn, which has been marked Ex. P. 8. Medical examination of the injuries sustained by Smt. Banni and Galla were got conducted. Injury report of Smt. Banni has been marked Ex. P. 15, whereas the injury report of Galla has been marked all Ex. P 16. The X-ray plates have been marked Ex. P 1, Ex. P 2, Ex. P 3 and Ex. P 5. Smt. Bannis X-ray report has been marked Ex. P 5, which shows a facture of left metacarple bones and fractures of frontal and parietal bones, Gallas skiagram showed a fracture of the third metacarple bone. X-ray report of Gallas injury has been marked Ex. P 5. After usual investigation, a challan was filed against accused Babuda, Dewa, Mawa, Hera and Mana. However, the learned trial Judge discharged the accused Dewa, Mawa and Hera, but he framed charges against accused Mana and Babuda, to which they pleaded not guilty and claimed to be tried. As many as twelve witnesses were examined by the prosecution in support of its case. The statements of the accused persons were recorded under section 313, Cr. P. C. They led no defence. After hearing the parties the learned Sessions Judge acquitted accused Mana, but convicted accused Babuda under the aforesaid sections and hence this appeal through jail.

( 3 ) AS no body came forward to represent the accused he was provided the legal assistance and Mr. S. N. Trivedi was appointed amicus curiae to assist the accused Babuda.

( 4 ) I have heard Mr. Trivedi as also Mr. U. C. S. Singhvi the learned Public Prosecutor. Mr. Trivedi has submitted that the learned lower court has not properly appreciated the evidence led in the case and has wrongly convicted accused Babuda. According to him, the accused deserves acquittal.

( 5 ) MR. Singhvi has however, submitted that in this case, not only accused Babuda was identified at the time of the occurrence but his name also finds place in the First Information Report and he has been identified at the trial and more over certain articles have been recovered from his possession and they have been identified by the prosecution witnesses and as such the conviction deserve to be sustained.

( 6 ) I have given my most earnest consideration to the rival submissions made at the Rar. In this case, it is alleged that accused Habuda was identified at the time of the occurrence by P. W. 4 Smt. Banni-mother of complainant Galla. Smt Fagnu has not identified accused Babuda Rather,