Syed Qamar Hassan, J.
1. Chinchoo Lingayya, Akula Kishlayya, Parameshwara Reddy, Ramchandra Reddy and Rajeshwar Reddy were charge-sheeted before the District Magistrate Adilabad, Under Sections 395 and 398, I. P. Code.. The accusation against them was that on the night intervening the 11th and 12th January 1955 at about 10-30 P. M., they, armed with. hand-grenades and jambias, entered Into, the house of Bhojanoa, P.W. 1 at Langdapur anit conjointly committed robbery of property, worth its. 1120/-. Thereafter they went to the house of Saiga, P.W. 22 and made an attempt to commit dacoity but due to the arrival of villagers they took to their heels without achieving their object.
2. The prosecution examined 26 witnesses and 9 witnesses were produced on behalf of the accused. The District Magistrate by his judgment of 17th August 1955 convicted them under Section 395 read with. Section 109, I. P. Code and sentenced them to undergo rigorous imprisonment for two years and to a fine of Rs. 1,000/- each. The accused took the matter in appeal and the Sessions Judge, Adilabad for the reason that the District Magistrate had wrongly refused to record the statement of the Collector of Adilabad who was cited as one of the defence witnesses, passed the following order on 6th October, 1955:
Appeal (s) allowed. The case is remanded to the lower Court for retrial with the instructions that Shri E. V. Rami Reddy, be summoned as a defence witnesses, through his Department and fresh judgment be written in the light of his statement....
3. After the remand, the file was placed before the District Magistrate the next day i.e., on 7th October 1955 and ho ordered the Collector of Adilabad to be summoned at the cost of the accused and also ordered that the Secretary, Revenue Board be addressed to give permission to the Collector to give evidence as a defence witness. In order to record his statement, the case was posted to 17-10-1955. On that date it appears that the accused had not deposited the necessary process fee.
The District Magistrate therefore refused to allow further adjournments and as no fresh material was brought on the record, he, so to say, re-wrote a fresh judgment on the same date. He acquitted the accused of the charge under Section 398 and again convicted and sentenced them under Section 395 as he had done in his previous judgment and order. Again the convicted persons went up in appeal to the Sessions Court.
The Sessions Judge by his judgment dated 21st March 1956 acquitted Rama--chandra Reddy on the ground that he was a stranger to the prosecution witnesses and also because his name did not find place in the F. I. R., and no property was recovered from his possession. With regard to the rest of the accused persons he agreed with the Trial Magistrate that there was cogent material on the record to uphold their convictions and sentences.
4. It is this appellate judgment and order against which the four accused with the exception of Ramachandra Reddy have separately filed revision petitions. I may at the outset state that I am much dissatisfied with the judgments of the Courts below. I would have sent back the case to the lower appellate Court to deal with all the prosecution witnesses and also the defence evidence which it had not done. But I find that the peti- tioners have served out their sentences of imprisonment and the only part of the sentences which has been suspended is that of fines.
5. Be that as it may, I have to deal with the argument addressed to me by the learned advocate for the petitioners. In the first place it was urged that the Trial Magistrate had acted with undue haste in not allowing the petitioners to examine the Collector, inasmuch as his statement was made subject to the permission, of the Revenue Board and the permission of the Revenue Board was not received lull 17th October 1955.
The other argument was that the lower appellate Court had remanded the case for retrial, therefore the District Magistrate had no power to pronounce the judgment on the old material on the record. Relying on Appalaswamy v. The State 1956 Andh WR 179 : A.I.R. 1957 Andh Pra 954 (A), it was contended that the petitioner could not be convicted under Section 395 since Ramachandra Reddy had been acquitted. Finally the judgment of the Sessions Judge was assailed on merits because of its conflicting findings on matters of identification of the accused involved therein.
6. I would first take up the question whether by reason of the acquittal of Ramachandra Reddy the petitioner could legally be convicted of dacoity under Section 395, I. P. Code. In the authority cited by the learned advocate for the petitioners the head note runs as follows:
Where the complaint stated that accused 1-7 cut and carried away the crops, the charge-sheet also recited that the seven persons mentioned therein committed the offence ascribed to them and even in the charge it is not stated that the seven accused and some others took part in the crime and the Sessions Judge did not accept the prosecution case that the accused 4 to 7 took part in the offence, the conviction of the remaining accused under Section 395 has to be quashed.
6-a) The learned Public Prosecutor relied on Narasingh v. State of U.P. : 1SCR238 and Dalip Singh v. The State of Punjab : 1SCR145 , for the proposition that it is not essential that five persons must always be convicted before Section 395 can be applied. The Supreme Court cases were dealing with cases in which the charge was under Section 149. In the first case their Lordships held that where it was possible to conclude that though five persons were unquestionably at the place of offence, the identity of one or more persons is in doubt and a conviction of the rest with the aid of the section would be good. In the other case their Lordships observed as follows:
The High Court gives a clear finding that there were more than five persons and believes the eye-witnesses who identify the two appellants. The mere fact that only two out of the band of attackers were satisfactorily identified does not weaken the force of find- ing that more than five persons were involved.
This brings me to the consideration of the finding of the lower appellate Court in that respect. After an examination of the evidence with regard to the identfication of the accused, the Sessions Judge observed:
When once, therefore, the evidence about identification is discarded, the statement in Court room of Bhojanna, Pedda Gangoo, Chinna Gangoo, Saiga and Ramloo, P.Ws. 1, 3, 4, 22 and 23 about the identity of activities of the accused persons who were strangers to them at the time of incident but were seen by them before their depositions are of no importance. Hence Ramachandra Reddy, A-4 deserves, I think, an acquittal, who was stranger to all these witnesses and who was neither mentioned in the F. I. R, nor any stolen property was alleged to have been recovered from his possession.
7. The finding in substance comes to [this that) only he was not identified but that 'he has been falsely implicated. This finding would therefore bring the case within the ratio of 1956 Andh WR 179 : A.I.R. 1957 Andh Pra 954 (A). I would therefore hold that conviction of the petitioners could not be upheld under Section 395.
8. I would have remanded the case to the lower appellate Court to see that they could be convicted of any lesser offence, because sitting in revision I do not feel inclined to sift the evidence as a Court of appeal. But as I am of opinion that the Trial Magistrate had acted wrongly in not allowing the petitioners to examine E. V. Ram Reddy, the convictions and sentences must be set aside and the Trial Magistrate directed to record the statement of the defence witnesses and give a fresh judgment. But in doing so, there is a possibility of the petitioners being sentenced again to the same term of imprisonment which they have already served out.
9. Their Lordships of the Supreme Court in the case of Habib Mohammad v. State of Hyderabad : 1SCR475 , had to deal with a situation as obtaining in this case. Their Lordships instead of remanding the case preferred to order an acquittal.
10. For these reasons, I allow the revision petitions Nos. 481 to 484/56 and, setting aside the convictions and sentences acquit the petitioners.