SHARMA, J. - (1.) S. B Criminal Appeal No. 641 of 1975, filed by Ganga Singh and S. B. Criminal Appeal No. 419 of 1975 preferred by Kishan Dan through the Superintendent, Central Jail, Jodhpur, arise out of one and the same judgment of the Additional Sessions Judge, Sirohi, dated 30th June, 1975, by which both the appellants were convicted under sections 394/397, 436 and 170, IPC and sentenced as under: - Ganga Singh 394/397, Rigorous imprisonment Kishan Dan I. P. C. for ten years each. - 436, IPC Five year'srigorous imprisonment each. - 170, I. P. C. One year's rigorous imprisonment each. All the sentences awarded to each appellant were ordered to run concurrently.
(2.) THE prosecution case against the appellants was that they along with two other persons reached village Amlari on 5-5-1971 at about 5 p. m. THEy were wearing police uniforms on their bodies and were armed with deadly weapons, i. e. guns, pistols etc. In the village they met Hazari Mal, who was going to his house for a bath. Ganga Singh and Kishan Dan appellants told Hazari Mal that they had seized illicit liquor from the village and that his presence was required to attest the recovery memo. Hazari Mai refused to be an attesting witness to the Panchnama and went away to his house. He was followed by the appellants and their two associates. Kishan Dan appellant caught hold of Hazari Mal and beat him with a lathi. Out of fear Hazari Mal entered his house and closed the doors thereof. After half an hour Ganga Singh appellant and two others succeeded in gaiaing entry into his house after setting fire to the doors. Ganga Singh appellant and his companion snatched ornamenta from the bodies of Hazari Mal's mother, and wife and looted other articles which were lying in a box inside the house. THEy detained Hazari Mal's sister's daughter also and told Hazari Mal that they would kidnap her if they were not immediately paid a sum of Rs. 1000/ -. Hazari Mal paid the sum and got the girl released from their custody. THE appellants and their companions entered the houses of Kishan Lal, Dharma Chand and Tilok Chand also and robbed them of their ornaments and belongings. THEreafter, the miscreants removed two gold chains and two gold rings from the body of Tilok Chand and obtained a sum of Rs. 730/-, from his house. THE miscreants then went to the shop of Radhey Shyam and got a sum of Rs. 100/-, from him and took away one ladies wrist-watch which Radhey Shyam was wearing. THE appellants and their companions then detained An Raj who was Branch Postmaster of the village but soon allowed him to go to discharge the duties of his post. An Raj rushed to village Sildar and informed Chandu Lal, Secretary, Gram Panchayat that four persons pretending to be police officers had beaten inhabitants of the village and robbed them of their belongings. Upon receiving such information, Chandu Lal lodged a first information report at police station, Kalandari, the very day at 8 p. m. Station House Officer, Bhagwat Singh recorded the first information report and registered a criminal case on its basis. He rushed to village Amlari for investigation into the case. He inspected the site, prepared the site-inspection memos of the houses of Dharam Chand, Phool Chand, father of Hazari Mal and Kishan Lal and received lists of looted articles from Kishan Lal, Tilok Chand, Hazari Mal and Radhey Shyam. He sent the injuried to hospital for medical examination as to their injuries. THE Doctor found five bruises on the person of Praga and two bruises and one lacerated wound on the person of Kishan Lal, Later on, in the course of investigation, Kishan Dan appellant and his companion Dhudia were detained by some persons near railway station, Kagmala, upon suspicion of being involved in the commission of offences of theft. This fact came to the notice of Nazir Mohammad, Station House Officer, Bhinmal, who went there and arrested Kishan Dan, vide memo of arrest Ex. P. 19. At the time of arrest Kishan Dan was found to have in his possession twelve gold ornaments, two wrist watches, some currency notes, and coins of India and Pakistan and a few brass buttons of police uniform. THEse articles were seized there and then by the Station House Officer. THEn Ganga Singh appellant and Mudar Dan were arrested by Circle Officer, Bhur Singh on 19-5-1971 at 10 30 am. from room No. 1 of the Central Lodge, Jodhpur. At the time of arrest Ganga Singh appellant had twenty four silver ornaments, three wrist watches, a police cap and Khakhi clothes with a whistle cord in his possession. All these articles were taken by Circle Officer, Bhoor Singh into his possession. After his arrest Kishan Dan gave an information to Nahar Singh, S. H. O. on 22-5-1971 that he had concealed two radio transistors underneath a rock of Torda hillock near the temple of Mahadeoji, which is situated to the right side of the bus stand, Jalia, and that he was prepared to get them recovered at his instance. Nahar Singh, Station House Officer, recorded the above infor-mation in a memo Ex. P. 21 and thereafter recovered the two radio-transistors from the aforesaid place at the instance of Kishan Dan appellant and in consequence of his information recorded under s. 27 of the Evidence Act. THE two radio-transistors were sealed properly in the presence of Punamchand and Phulia. THE ornaments and articles recovered from the possession of the appellants were, later-on, put up in a test-identification parade held by the Tehsildar and Second Class Magistrate, Sirohi, PW. 8. Some of the ornaments and articles were correctly indentified in the parade by the victims of the robbery to be the articles which were forcibly taken away by the miscreants from their houses and possession at the time of committing robbery. Both the appellants also were put up for identification in a test-parade held by Shri R. P. Nag, Sub-Divisional Magistrate, Sirohi, and were correctly identified by Tilok Chand, Radhey Shyam, Hazari Mal and Kishanlal to be the robbers who looted ornaments and articles from their houses. After collecting other necessary evidence the police put up a challan against both the appellants in the court of the Munsiff-Magistrate, Sirohi, under sections 394,397,436 and 171, I. P. C. THE learned Magistrate held an inquiry, preparatory to commitment, and upon finding a prima facie case against the appellants, committed them to the court of the Additional Sessions Judge, Sirohi, for trial for the offences punishable under sections 170,394,397 and 436, I. P. C. THE Additional Sessions Judge tried the appellants and found them guilty of the aforesaid charges. Consequently, he convicted and sentenced the appellants in the manner stated above. Aggrieved by their conviction and sentences each appellant has preferred separate appeal. As common questions of law and facts are involved in these two appeals, and, as they arise out of one and the same judgment delivered by the Additional Sessions Judge, Sirohi, they are disposed of together by one single judgment. I have carefully gone through the record and heard Mr. Bhagwati Prasad and Mr. S. T. Porwal for the appellants and Dr. S. S. Bhandawat for the State. Firstly, It has been contended on behalf of the appellants that the prosecution could not succeed in proving beyond reasonable shadow of doubt that the two appellants were amongst the four persons who had robbed Kishan Lal, Dhan Raj, Hazari Mal and their wives and sisters of their ornaments and belongings at the alleged time and place According to the learned counsel for appellants, the value of identification evidence in this case is highly diminished because there was ample opportunity for the identifying witnesses to see the appellants a day before the identification parade was actually held. It was further argued that there is no explanation forthcoming from the side of the prosecution why the appellants were put up for identification in a test parade after about twenty-five days from the date of their arrest and why ten persons only were mixed with four suspects including the two appellants in the parade, In support of his above contention, Mr. Bhagwati Prasad, learned counsel for the appellants has relied upon Hasib vs. State of Bihar (1), Pritam Singh vs. State (2), King-Emperor vs. Kishan Lal (3), State of Rajasthan vs. Ranjita (4), Emperor vs. Chhadammi Lal (5) and Asharfi vs. State (6 ). Dr. S. S. Bhanadwat appearing on behalf of the State, on the other hand, urged that the trial court tightly placed reliance on the evidence of identification and there are no such infirmities in it as pointed out by the learned counsel for the appellants. According to him, neither the appellants were shown to the identifying witnesses at any time prior to the test identification parade, nor was there any opportunity for the identifying witnesses to see the faces of the appellants a day prior to the test-identification parade. He further contended that the entire identification evidence cannot be brushed aside merely because there was some delay in holding the test-identification parade after the arrest of the appellants. In support of his above contention, he has placed reliance on a recent authority of this Court Laxmi Narain vs. State of Rajasthan (7 ). I have considered the rival contentions. It is not disputed before me that the two appellants were unknown to the identifying witnesses prior to the occurrence. The witnesses, no doubt, disclosed to the investigating officer that they would be able to recognise the robbers if shown to them. Thereupon, the investigating agency decided that a test identification parade of suspect including the two appellants be held before the Sub Divisional Magistrate, Sirohi. Accordingly a test parade of the suspects including the two appellants was held at Sub-Jail, Sirohi, by Shri R. P. Nag, Sub Divisional Magistrate, Sirohi, on 15-6-71. The identifying witnesses, namely, Radhey Shyam, Tilok Chand, Kishan Lal and Hazari Mal were called upon to identify the persons who were involved in the commission of the crime. Out of the identifying witnesses Radhey Shyam and Hazari Mal identified Ganga Singh appellant to be one of the persons who had participated in the robbery while Kishan Lal and Tilok Chand identified both the appellants in the test-prade to be the persons who had forcibly taken away the articles and ornaments belonging to them and other victims of robbery. These four witnesses, thereafter, correctly identified the two appellants in the trial court also. The credibility of these witnesses on the point of identification of the appellants has been challenged before me by the learned counsel for the appellants on the ground that the appellants were shown to these witnesses before they were put up for identification. It has, therefore, to be determined whether there was a possibility in this case of the appellants being shown to the identifying witnesses prior to the test-identification. To substantiate his contention, Mr. Bhagwati Prasad, learned counsel for the appellants, invited my attention to an entry Ex. D. 3 made on 14-6-1971 in the gate register of Sirohi Sub Jail, and argued or its strength that the inference that the appellants were shown to the identifying witnesses is not based on surmises but on concrete facts. I have perused the aforesaid entry Ex. D. 3 made in the gate register of Sirohi Sub Jail, on 14-6-1971. The entry clearly reveals that the two appellants along with Murar Dan and Dhudia co-accused were taken out of the jail premises by the police guard on 14 6 1971 at 11. 10 am. for being produced in the court of the Sub Divisional Magistrate, Sirohi, There is another entry made in the said register at 4 45 pm. the very day which clearly reveals that the two appellants along with Murar Dan and Dhudia co-accused were brought back to Sirohi Sub-Jail from the court of the Sub-Divisional Magistrate, Sirohi, by the police, This extract from the gate register of Sirohi Sub Jail is duly proved by the testimony of Govind Singh, Assistant Jailor, D. W. 4, who stated, in clear and definite terms, that the two appellants were sent from jail to the court of the Sub-Divisional Magistrate, Sirohi, on 14 6 1971 at 11-10 a. m and thereafter readmitted into jail in the evening at 4- 45 pm. The prosecution could not assign any reason why the two appellants were taken out of Sirohi Sub-Jail and brought to the court of the Sub Divisional Magistrate a day prior to the test-idenrification parade. Apart from this documentary proof, there is the oral evidence of Bhuba Ram, CW. 1, who also testified to the fact that the Assistant Sub-Jailor, Srohi, was directed to produce the two appellants and the co-accused in the court of the Sub-Divisional Magistrate for identification on 14-6-1971 at 10 am. The letter issued by Bhuba Ram Patel to the Assistant Jailor is Ex. P. 38. Bhuba Ram admitted his signatures on this latter. There is another letter Ex. P. 39, which was written the very day i. e. , on 14 6-1971 to the Assistant Jailor, Sub Jail, Sirohi, Vide this letter the Assistant Jailor was informed that the identification; parade would be held in the Sub Jail at 4 pm the day instead of 10 am. The third letter is Ex. P. 40 which also was written on 14-6-1971 for the purpose of giving intimation to the Assistant Jailor, Sub Jail, Sirohi, that the identification parade would not be held on 14-6-71 due to rush of case work and that it would be held on 15-6-1971 inside the jail premises, at 10. 30 a m. These letters coupled with the relevant entries made in the gate register of the Sirohi Sub Jail clearly establish that the two appellants were there in the premises of the Court of the Sub-Divisional Magistrate, Sirohi, on 14-6-1971 during court hours between 11. 10 a. m. and 4. 45 pm. Mr. Bhagwati Prasad's further contention is that daring this period the identifying witnesses also were present in the court premises as they were called upon to identify the articles and ornament seized by the police in this case in a test-identification parade held by the Tehsildar and Second Class Magistrate, Sirohi, on 14-6-1971. According to the learned counsel, the identi-ficating witnesses had enough opportunity to see the appellants in the court premises during the peried between 11. 10 a m. and 4 45 p. m. The above contention is not devoid of force. From a bare reading of the statement of Manak Chand, Tehsildar, P. W. 8, it is established that the ornaments and articles recovered by the police in this case were put up for identification in a test-parade held by him during office hours in his court at Sirohi on 14 6-71. It is further proved by his evidence that Radhey Shyam, Tilok Chand, Hazari Mal and Kishan Lal were called upon to identify the property which was the subject-matter of the offence. This fact is further proved by the evidence of Bhagwat Singh, P. W. 23, who admitted in his deposition that he and the identifying witnesses were present during office hours on 14-6-1971 in the court premises at Sirohi. According to him, he had gone there in connection with the identification proceedings with regard to the properties recovered by him in this case. There is no dispute that the identifying witnesses, namely, Radhey Shyam, Tilok Chand, Hazari Mal and Kishan Lal, who were present in the court premises on 14-6-1971 during office hours, were the same persons, who were called upon to identify the appellants in the test parade held on 15-6-971. Thus there was ample opportunity for these witnesses to see the appellants on 14-6-1971 in the court premises at Sirohi. The investigating agency ought to have taken precautions to avoid all opportunities of the appellants being seen by the identifying witnesses prior to the test-identification parade There is no evidence from the side of the prosecution on the record that such precautions were taken by the investigating agency. On the other hand, a vain effort has been made by Bhagwat Singh, P. W. 23, to convince the court that the two appellants were not brought to the court on 14-6-1971. The statement of Bhagwat Singh, Station House Officer, denying the presence of the appellants in the court premises during office hours on 14-6-71 cannot be accepted true in view of the overwhelming documentary and oral evidence that the two appellants were brought from Sirohi Sub Jail to the court of the Sub-Divisional Magistrate on 14-6-1971 at 10- 30 a. m. and were taken back to the jail on the very day at 4-45 pm. Hence, the possibility of the appellants being shown to the identifying witnesses before they were put up for identification in a test-parade could not be ruled out altogether in this case, because the witnesses and the appellants were there in the court premises on 14-6-71 for hours together. This infirmity in the evidence of the identification of the appellants was considered by the Additional Sessions Judge also in his judgment under appeal, as is evident from the following observations made by him: - "it is also an admitted fact that on 14-6-71 when the accused were taken to the court compound, S. H. O. Bhagwat Singh was also Present in the court premises and this fact is admitted toy him, though the S. H. O. as said that he had gone to the court on that date for arranging the identification of the stolen articles. The facts that the stolen articles were also got identified on the same date, does not prove that most of the prosecution witnesses were also in the Court compound, and therefore the possibility of their having seen the accused cannot be ruled out. This circumstances has somewhat weakened the evidence about the identification. " Hence, I am not satisfied that the evidence of the identifying witnesses, namely, Radhey Shyam, Kishan Lal, Tilok Chand and Hazari Mal is such that it can be safely relied upon so far as the identity of the appellants is concerned. The evidence of identification of the accused cannot be accepted, unless the court is satisfied that the identifying witnesses were not given an opportunity to see and recognise the accused after their arrest and before they were put up for identification in a test identification parade. The trial court, after comming to a conclusion that the evidence of identification of the appellants has been somewhat weakened, went wrong in acting upon it for the purpose of convicting the appellants. Mr. Bhagwati Prasad learned counsel for the appellants further contended that the evidence of identification suffered from another infirmity inasmuch as the test-identification parade was held after more than 25 days from the dates of arrest of the two appellants. Kishan Dan appellant was taken into custody on 17-5-1971 vide his arrest memo Ex. P. 19, while Ganga Singh appellant was arrested on 19 5-1971 vide memo of arrest Ex. P. 15. After their arrests the two appellants were put up for identification in a test parade on 15-6-71, i. e. after more than 25 days. No explanation is forthcoming from the side of the prosecution why the test- identification parade was not held within a reasonable time after the arrest of the two appel-lants. In Pritam Singh vs. State (Supra), it was held by this Court that no value can be attached to the evidence of identification if the test identification parade is held long after the arrest of the accused-appellants. In the referred to above case, the accused persons were put up in a test-identification parade eleven days after their arrests and there was no reasonable explanation from the side of the prosecution why so much time was taken by the investigating agency for putting up the accused in a test-parade. Their Lordships of the Supreme Court also observed in Hasib vs. State of Bihar (supra) that the test-identification. parade should be held at the earliest opportunity after the arrest of the accused-In Laxmi Narain and others vs. State of Rajasthan (supra), relied upon by Dr. S. S. Bhandawat, it has been merely observed that the infirmity caused by delay in holding the test-identification parade was not sufficient to brush aside the evi-dence of identification altogether. It is nowhere laid down in that case that the value of indentification parade is not minimised by reason of long lapse of time between the arrest of the accused and the test-identification. Consequently, I am of the view that in determining the value of test-identification, parades one of the vital factors that has to be considered is whether the identification parade was held within a reasonable time after the arrest of the accused and, if not so, whether there is convincing explanation from the side of the investigating agency for delay in conducing the test-parade. Another infirmity in the test-identification parade pointed out by the learned counsel for the appellants is that the parade was made too easy for the identifying witnesses to pick-out the appellants. According to the learned counsel for the appellants only ten persons were mixed with the appellants and the two co-accused in the test-parade and so there was greater probability of the appellants being identified by chance. The above contention also is not devoid of substance. It cannot be over-emphasised that the accused should be paraded with a fairly large number of persons of similar age, height, stature etc. So as to eliminate possibility of the accused being picked up or identified by chance. In the present case the two appellants along with other two co-accused were put up for identification along with ten persons only. In my opinion, in a fair-identification parade the proportion of suspects to undertrials mixed-up with them should bear the ration of 5:1 or 4:1 in order to minimise the chance of the accused being picked-up accidentally or by chance As the proportion in this case bore the ratio of 4 : 10, it cannot be safely held that the identification test-parade was a fair one. Taking all these factors into consideration, I an* reluctant to accept the evidence of identification in this case. Another important piece of evidence relied upon by the prosecution is that several articles and ornaments made of gold and silver were recovered from the possession of each appellant and were proved to be the same articles which were forcibly taken away by the robbers. Mr. Bhagwati Prased, learned counsel for the appellants, has assailed the evidence of recoveries of articles and ornaments on several grounds. The first infirmity in the evidence of the recovery pointed out by the learned counsel for the appellants is that the prosecution could not adduce cogent and satisfactory evidence to prove which of the articles and ornaments belonged to which victim of the robbery. The above contention has no force. It is proved by the evidence of Nazir Mohammed, P. W. 22, that Kishan Dan appellant was arrested on 17-5-71 vide memo of arrest Ex. P 19. At the time of his arrest, Kishan Dan had several ornaments in his possession which were seized by the police. The ornaments recovered from his possession were as follows: - 1. Gold ring weighing 5 gms. 2. Gold ring weighing 6 gms. 3. Gold ring bearing the name 's. B. SHA' weighing 5 gms. 4. Gold Ogania 6 gms. 5. Piece of Gold ring 5 gms. 6. Gold Ogania studded with stones 3 gms. 7. Two gold Zhelas 28 gms. 8. Gold Kanthi 24 gms. 9. Gold Chain 16 gms. 10 Gold Chain 13 gms. 11. Gold Chain 28 gms. 12. Gold Chain 43 gms. Apart from these ornaments, a good number of other articles, e. g. currency-notes, coins, one Seiko wrist watch, one Feavre Luba wrist watch and two brass buttons, etc. were also found in his possession. The recovery of these articles and ornaments from the possession of Kishan Dan is fully proved by the evidence of Nazir Mohammed PW. 22 and the arrest memo Ex. P 19 After his arrest Kishan Dan appellant furnished an information to the Station House Officer, Nahar Singh on 21-5-1971 that he had concealed two radio-transistors underneath a rock of hillock and that he was prepared to get them recovered at his instance Nahar Singh, Station House Officer, recorded the above information in a memo Ex P. 21 and, thereafter, recovered the radio transistors Exs. 14 and 15 from the place disclosed by Kishan Dan. The recovery memo of the radio-transistors prepared by Nahar Singh is Ex P 12. The recovery of these radios is fully proved by the evidence of Nahar Singh, Station House Officer, PW. 17 and Poonam Chand Motbir, PW. 10 Later on the two radio-transistors and the ornaments were put up for identification in a test parade held by Manak Chand, Tehsildar. The two radio-transistors were identified by Dharam Chand PW. 11 to be the same radios which were forcibly taken away by the robbers from his house. Dharam Chand identified these very radio-transistors in the trial court also and claimed them to be of has ownership. Hence, it was proved beyond reasonable doubt that on 22-5 1971 Kishan Dan was found in exclusive possession of the two radio-transistors which were taken away forcibly by the robbers from the house of Dharam Chand on 5-5-1671. The appellant failed to account for his possession of the stolen radio transistors. He merely denied the recovery thereof at his instance and in consequence of his information recorded by the police in the course of investigation, but his bare denial is not sufficient to rebut the cogent and reliable evidence of recovery of stolen properly from his possession. Hence, a presumption of guilt does arise from his recent and exlusive possession of the looted articles. Like wise, it is proved beyond reasonable doubt by the prosecution that Ganga Singh was found in possession of the following gold and silver ornaments at the time of his arrest : - 1. Four silver Kadlas 73 gms. 2. Four silver bangles 32 gms. 3. Silver ingot bearing No. '999' 1 Kg. & 53 gms. 4. Piece of silver ingot bearing No. '999' 187 gms. 5. Silver ingot 113 gms 6. Silver Badla 187 gms. 7. Silver wire 92 gms. 8. Silver Toti 85 gms. 9 to 24 are other silver ornaments. 25. Henry Sandoz wrist watch. 26. Treassa wrist watch. 27. Henry Sandoz wrist watch, 28. Wollen police cap with Ashoka Pillar monogram, 29. Police side cap (woollen) with two brass buttons having letters 'rp' engraved on them; 30. Khakhi bush shirt; 31. Khakhi shirt, belt etc. The recovery of these articles is proved by the evidence of Circle Officer, Bhur Singh. These articles were, later on, put up for identification in a test-parade held by Manak Chand. Out of these articles, a Tressa wrist watch and two silver ingots, two silver 'karlas' and a pair of silver 'totis', one silver 'gajra', one silver 'hathphool', a pair of Toris', Two 'tadas' of gold, and a 'mangal-shootra' were identified by Hazari Mal PW. 15 to be his properties in the test parade and there after in the trial court. There is no reason to disbelieve the evidence of Hazari Mal relating to the identification of these articles. Hence, it may be said without; difficulty that the prosecution has succeeded in proving to the hilt that Ganga Singh as found in recent and exclusive possession of some of the looted articles and ornaments, on 19-5-1971, i. e. about 14 days after the occurrence. Ganga Singh also failed to give any reasonable explanation for his recent possession of the looted articles and ornaments. Ha merely denied that any ornaments or articles were recovered from his possession at the time of his arrest. His mere denial is not sufficient to displace the strong presumption of his guilt, that does arise from his recent and exclusive possession of the looted properties. Hence, I have no hesitation in holding that Ganga Singh was found in possession of looted articles soon-after the occurrence and he failed to give a satisfactory account how he had acquired possession thereof. The next question that arises for determination is whether recent and unexplained possession of looted properties can be presumptive evidence against the two appellants of charges under secs. 394/397, 436 and 170, I. P. C. As stated earlier, there is no reliable direct evidence on the record that the two appellants had committed the crimes of robbery with attempt to cause grievous hurt, mischief by fare and personating a public servant. The evidence of identification of the two appellants has been found unsatisfactory upon careful scrutiny thereof. Hence, there left no evidence on the record except the presumptive evidence under illustration (a) to sec. 114 of the Evidence Act to show that the two appellants having armed themselves with deadly weapons pretended to be police officers knowing that they did not hold such office and robbed Kishan Lal, Hazari Mal, Tilok Chand and Radhey Shyam of their ornaments and articles -and committed mischief by setting fire to the doors of the house of Hazari Mal. It is undoubtedly true that the presumption of guilt from recent and unexplained possession of the stolen property is not confined to cases of theft bat may be extended to graver offences also. Mo invariable rules can be laid down when and what presumption may arise from recent exclusive and unexplained possession of stolen property, and it depends upon the facts and circumstances of each case. In the instant case looted ornaments and other articles were not recovered from the possession of the two appellants shortly after the occurrence. There was a time gap of two weeks between the occurrence and the recovery. The articles and ornaments recovered from the possession of the appellants were not of such nature as were not likely to change hands quickly The only inference that can be raised from the unexplained recovery of looted articles from the possession of the appellants in this case is that they were receivers of the stolen properties. Hence in the particular circumstances of this case, it is not to safe infer from the mere unexplained recovery of the looted articles that the two appellants were the persons who had perpetrated the crimes punishable under secs. 394/397, 436 and 170, I. P. C. The appellants are, therefore, guilty of an offence punishable under sec. 411, I. P. C. only. The result is that I partly accept the appeal of Ganga Singh and set aside his conviction and sentences under secs. 394/397, 436 and 170, I. P. C. and instead convict him under sec. 411, I. P. C. only and sentence him to undergo rigorous imprisonment for three years. Likewise, the appeal filed by Kishan Dan is accepted in part and his conviction and sentences under secs. 394/397, 436 and 170, LP G. are set aside and instead he is convicted under sec. 411, I. P. C. only and sentenced to undergo rigorous imprisonment for three years. However, the period of detention, if any, undergone by the two appellants during investigation, inquiry or trial of this case and before the date of such conviction shall be set off against the term of imprisonment imposed on them and their liability to undergo imprisonment, on such conviction, shall be restricted to the remainder if any of term of imprisonment imposed on them, I am told by the learned counsel for the appellants that both the appellants are undergo detention since their arrests in the year 1971. If this is correct, they shall be released forthwith, if not required in connection with some other case. . ;