Bombay High CourtVijay More @ Viju @ Rahul Shantaram More vs The State Of Maharashtra on 25 March, 2014Author:Mridula BhatkarBench:Mridula BhatkarSherla V.


                                                              apeal.1110.2012+(J).doc

                       THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CRIMINAL APPELLATE JURISDICTION




                                                                               
                            CRIMINAL APPEAL NO.1110 OF 2012

            Vijay More @ Viju @ Rahul Shantaram More   ... Applicant




                                                       
                 Vs.

            The State of Maharashtra                   ... Respondent




                                                      
                                         a/w
                          CRIMINAL APPLICATION NO.520 OF 2013
                                          IN
                            CRIMINAL APPEAL NO.1110 OF 2012




                                             
            Vijay More @ Viju @ Rahul Shantaram More
                                  ig                   ... Applicant

                 Vs.
                                
            The State of Maharashtra                   ... Respondent

                                         A/W
                            CRIMINAL APPEAL NO.734 OF 2012
               


            Jitendra Thakur @ Akbar Khan Mangal
            



            Singh Durani                               ... Appellants

                 Vs.
    




            The State of Maharashtra                   ... Respondent

                                         A/W
                         CRIMINAL APPLICATION NO.1014 OF 2012
                                          IN
                            CRIMINAL APPEAL NO.734 OF 2012





            Jitendra Thakur @ Akbar Khan Mangal
            Singh Durani                               ... Appellants

                 Vs.

            The State of Maharashtra                   ... Respondent



    vss                                                                        1 / 42



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                                                      apeal.1110.2012+(J).doc

                                  WITH
                      CRIMINAL APPEAL NO.905 OF 2012




                                                                      
      Sikandar Sayyed Mehboob Sayyed          ... Appellants

           Vs.




                                              
      The State of Maharashtra                ... Respondent

                                   A/W




                                             
                    CRIMINAL APPLICATION NO.970 OF 2013
                                    IN
                      CRIMINAL APPEAL NO.905 OF 2012

      Sikandar Sayyed Mehboob Sayyed                   ... Applicant




                                      
           Vs.             
      The State of Maharashtra                ... Respondent
                          
                                  WITH
                      CRIMINAL APPEAL NO.608 OF 2012
         

      Sameer @ Vijay Jakhira Shaikh           ... Appellant
      



           Vs.

      The State of Maharashtra                ... Respondent





                                   A/W
                    CRIMINAL APPLICATION NO.909 OF 2012
                                    IN
                      CRIMINAL APPEAL NO.608 OF 2012

      Sameer @ Vijay Jakhira Shaikh           ... Appellant





           Vs.

      The State of Maharashtra                ... Respondent




vss                                                                   2 / 42



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                                     A/W
                        CRIMINAL APPEAL NO.514 OF 2012




                                                                              
      Ravi Shankar Marchande                           ... Appellant
            Vs.
      The State of Maharashtra                         ... Respondent




                                                      
                                    WITH
                        CRIMINAL APPEAL NO.583 OF 2012




                                                     
      Velu Murgan Chinappa Devendra                    ... Appellant
            Vs.
      The State of Maharashtra                         ... Respondent

                                    A/W




                                          
                    CRIMINAL APPLICATION NO.1168 OF 2012
                              ig     IN
                       CRIMINAL APPEAL NO.583 OF 2012

      Velu Murgan Chinappa Devendra                    ... Appellant
                            
            Vs.
      The State of Maharashtra                         ... Respondent

                                     A/W
          

                        CRIMINAL APPEAL NO.856 OF 2012
       



      Vijaysingh @ Salim Suresh Singh Thakur           ... Applicant
            Vs.
      The State of Maharashtra                         ... Respondent





                                   AND
                    CRIMINAL APPLICATION NO.1183 OF 2012
                                    IN
                       CRIMINAL APPEAL NO.856 OF 2012

      Vijaysingh @ Salim Suresh Singh Thakur           ... Applicant





            Vs.
      The State of Maharashtra                         ... Respondent


      Mr.Vijay Heremath for Appellant/Applicant in Apeal/1110/2012 with
      APPP/520/2013

      Mr.Jayesh A. Vithalani for Appellant/Applicant in Apeal/514/2012


vss                                                                           3 / 42



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      Mr.K.. Sanghani for Appellant/Applicant in Apeal/583/2012 with
      APPP/1168/2012




                                                                                
      Mr.Mohsin Khan Pathan for Appellant/Applicant in Apeal/608/2012 with
      APPP/909/2012




                                                        
      Ms.Apeksha Vora for Appellant/Applicant in Apeal/734/2012 with
      APPP/1014/2012




                                                       
      Mr.Ganesh Gole with Ritesh Ratnam for Appellant/Applicant in
      Apeal/856/2012 and APPP/1183/2012

      Mr.R.V. Gupta for Appellant/Applicant in Apeal/905/2012 and
      APPP/970/2013




                                           
      Ms.Ms.A.A. Mane, APP, for State
                              ig        CORAM: MRS.MRIDULA BHATKAR, J.
                            
               JUDGEMENT RESERVED ON: FEBRUARY 7, 2014
            JUDGEMENT PRONOUNCED ON: MARCH 25, 2014

      JUDGMENT:1.    All these appeals are directed against the judgment and order dated
          



      11.4.2012 passed by the Additional Sessions Judge, Sewri, Mumbai

      thereby convicting all the 7 accused for the offence of dacoity undersection 395of the Indian Penal Code sentencing them to suffer R.I. for 10

      years and fine of Rs.5,000/- each, i/d RI for 9 months each. They were

      also held guilty for the offence undersection 397of the Indian Penal Code





      and were sentenced to suffer RI for 7 years each. They were also held

      guilty for the offence punishable undersection 37(i)(a)r/wsection 135of

      the Bombay Police Act and were sentenced to suffer S.I. for six months

      each and to pay fine of Rs.100/- each or suffer S.I. for 8 days each.vss                                                                             4 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc2.    Brief facts of the case are as under:The incident of dacoity had taken place in the Oriental Bank of




                                                      
      Commerce, Khar branch, S.V. Road, Mumbai on 16.8.2004.                         The

      appellants/accused have looted the bank at the point of revolver and knife




                                                     
      and have taken cash worth of Rs.2,38,844/- and also snatched

      Mangalsutra and gold chain of one of the bank employees. The dacoity




                                           
      has taken place at 13.35 hours when the Bank Manager, PW1
                             
      Adityakumar Singh, was present in his cabin. The bank transactions were

      going on and the bank was to close at 2pm.          It is the case of the
                            
      prosecution that the respondents/accused Nos.1 to 5 entered the bank.Accused No.6 is a taxi driver and he was in the taxi standing outside the
             


      bank. Accused No.7 remained outside to keep a watch. Accused Nos.1 to
          



      7 entered the bank with weapons. Accused No.3 was holding revolver.One person was holding a chopper. One was with revolver. The Manager,





      PW1, was asked to take out the purse. They made the Manager to enter

      the cash cabin. This incident has taken place at about 1.35pm. All the

      other accused persons pulled the computer wires and telephone cables





      and disconnected the same.      There were four bank employees at the

      counters i.e., Laxmi Subramanian, PW4 Pranali Rasam, PW13 Vrushali

      Ravanang and PW5 Kuppa R. Raghunath. All those bank employees

      alongwith the Manager were asked to sit down in the cabin. They took thevss                                                                           5 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      keys of the locker, took out cash and collected the cash in a nylon bag.One of the accused snatched the gold chain and Mangalsutra of PW4




                                                                               
      Pranali Rasam. While doing so, they threatened the bank employees with




                                                       
      their knife. One of the accused pasted a tape around the mouth and face

      of the Manager. They were speaking loudly, threatened them of their lives.Thereafter, they all locked them outside the cabin and left the bank. At

      that time, PW11 Santosh Ghag, who was working as a peon in the said

      bank, was out for bank work.       He returned to the branch at around




                                           
      1.45pm. He saw that though the door of the cash counter was closed and
                             
      he was informed that there was a dacoity in the bank, the Manager asked
                            
      him to go to the police station which was closeby and inform the police

      about the dacoity as all the telephone wires were disconnected. He went
          

      to the police at Khar Police Station and called them.At that time, PW17, Vijay Dhatrak, Police Inspector, attached to Khar

      police station was on duty as SHO. He made entry in the station diary. He





      received the information of dacoity from PW11 Santosh Ghag.                       He

      alongwith PSI Sonawane and the staff left the police station and went to

      the spot. Police registered the offence at C.R. No.302 of 2004. They





      prepared spot panchanama and recorded statement of the Bank Manager,

      PW1 Adityakumar Singh, which is recorded as FIR (exhibit 86) in the

      presence of two panchas. They collected one adhesive tape. They had

      also taken some fingerprints from the cabin of the Manager and cashvss                                                                            6 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      counter of the bank under panchanama, which is marked exhibit 45.Thereafter, he recorded FIR, which is marked as exhibit 86.              Further




                                                                             
      investigation was carried out from 17.8.2004 by Dilip Shinde, API,




                                                     
      attached to the Khar Police Station. He recorded the statement of the

      Bank Manager on 17.8.2004.During the course of investigation, police received information on

      6.9.2004 that two accused were arrested by the Crime Branch and they




                                         
      were named as the Jitendra Thakur, accused No.1 and Vijay More,
                            
      accused No.2. They were accordingly taken in custody for the offence of
                           
      dacoity on 6.9.2004 and arrested them.     Thereafter, both the accused

      made voluntary statements and pursuant to those statements, discovery

      panchanamas were drawn in the presence of panchas respectively on
         
      



      10.9.2004 and 13.9.2004 and the police recovered a bundle of G.C. Notes

      from both the accused.    On 15.9.2004, other three accused, namely,

      accused No.3 Ravishankar, accused No.4 Velu and accused No.6





      Sikander were transferred on 4.9.2004 from DCB, CID, in C.R. No.105 of

      2004. Thereafter, on 25.9.2004, the other two accused i.e., accused No.5





      Sameer @ Vijay Shaikh and accused No.7 Vijaysingh @ Salim Thakur,

      were again arrested on transfer warrant.    On 19.9.2004, a knife was

      discovered under panchanama pursuant to the voluntary statement made

      by the accused No.2 Vijay.      Thereafter, on 27.9.2004, the taxi wasvss                                                                          7 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      discovered on the voluntary statement made by accused No.6 Sikander

      and thereafter, the Mangalsutra was discovered and seized under




                                                                                
      panchanama pursuant to the voluntary statement made by accused No.4




                                                        
      Velu on 28.9.2004. The police recorded the statement of the jeweller from

      whom Mangalsutra was seized.On 16.10.2004, test identification parade was conducted of the

      accused by the Special Executive Magistrate in Arthur Road Jail. The




                                            
      Complainant and the Bank employees and also the other witnesses
                             
      identified the accused in the test identification parade. After completion of
                            
      the investigation, the chargesheet was filed on 2.12.2004 in the JMFC and

      thereafter, the case was committed to the Court of Sessions on 4.12.2004.3.    Charge was framed on 29.10.2005 against all the accused.Evidence of 18 witnesses was tendered by the prosecution and the trial

      was concluded in the conviction of all these accused for the offences as





      mentioned above. Being aggrieved by the said judgment and order, the

      accused have preferred these 7 appeals.4.    The learned Counsel for the defence, on the point of identification,

      have relied on the Full bench judgment of the Allahabad High Court in the

      case ofSheo Raj vs. State1, wherein it is held that the memo of test
      1 AIR 1964 ALLAHABAD 290vss                                                                             8 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      identification parade held by the Magistrate is not admissible without proof.The learned Counsel has also relied on a three-Judge Bench Judgment of




                                                                                  
      the Supreme Court in the case ofMohanlal Gangaram Gehani vs. State




                                                          
      of Maharashtra2, where the Supreme Court held that if the offender is not

      known to the witness before the incident and if identified for the first time in




                                                         
      the Court, in the absence of test identification parade, the evidence of

      such witness is valueless and could not be relied upon.5.     The learned Counsel for the Defence have submitted that the case
                              
      of the prosecution is not reliable as the witnesses had deposed
                             
      contradictory to each other. It is submitted by the learned Counsel for all

      the accused that description of the accused was not given by any of the

      eye witnesses in their evidence and also at the time of recording of their
             
          



      statements. Their statements were recorded by the police and, therefore,

      the identification of these witnesses at the time of test identification parade

      and also in the Court is not believable. The SEO was not examined, so





      the evidence in respect of the test identification parade cannot be

      considered. The learned Counsel for the accused submitted that all the





      seven accused are collectively held guilty undersection 397of the Indian

      Penal Code. However, considering the ingredients undersection 397of

      the Indian Penal Code, if there is no recovery of the weapon and if the

      weapon is not used by the offender at the time of the dacoity, then that
      2 AIR 1982 SC 839vss                                                                               9 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      particular accused cannot be held guilty undersection 397of the Indian

      Penal Code. All the learned Counsel for the accused have submitted that




                                                                                 
      the observations of the learned Sessions Judge are factually wrong while




                                                         
      appreciating evidence of all the witnesses.6.    Learned Counsel for accused No.1 stated that PW1 Adityakumar

      has deposed that accused No.1 entered his cabin. He was raising his

      voice and was holding knife in his hand. The recovery panchanama in




                                            
      respect of the knife by the PW2 is false. He submitted that PW1 did not
                              
      attribute any role to accused No.1 at the time of test identification parade.7.    The learned Counsel for accused No.2 argued that the PW1 has

      identified accused No.2 at the time of identification parade. However, in
             


      paragraph 25 of the cross-examination, he has admitted that a police
          



      constable was present at the time of the test identification parade. As the

      SEO is not examined, evidence in respect of the procedure, which is





      required to be followed, at the time of test identification parade is not

      properly tendered by the prosecution. Though PW4 Pranali has identified





      accused No.2, no specific role is attributed to him. PW5 has stated in para

      4 of the evidence that accused No.2 was holding knife. Evidence is not

      clear whether he put the cash in the nylon bag or not. It is further argued

      that in paragraph 7 of the evidence, PW5 has stated that at the time ofvss                                                                              10 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      identification parade, he identified two persons who took Mangalsutra and

      chain and he pointed out accused No.2 and accused No.4 as the same




                                                                              
      persons. However, the learned Counsel submitted that no role of




                                                      
      snatching either the chain or Mangalsutra is attributed to the accused by

      any other witnesses.        The evidence of panch witness PW7 Jessi




                                                     
      Mendonca on the point of recovery of bundle of 100 G.C. currency notes

      of Rs.20/- denomination (exhibit 54 and 55) cannot be believed.                The

      learned Counsel submitted that the cross-examination by the accused




                                           
      No.2 was shown in person as his advocate was absent and it is recorded
                               
      as declined when the witness was examined on 19.7.2008. He submitted
                              
      that no proper opportunity was given to the defence by the learned

      Sessions Judge to cross-examine to accused No.2 by cross-examining the
             

      material witness PW7, who said about the discovery against the accused
          



      No.2. Hence, the trial is vitiated.8.    The learned Counsel for Accused No.3 submitted that PW1 Aditya





      has stated that he put up revolver on his head and he took him outside his

      cabin and made him to sit facing the wall.     Even in the identification





      parade, he recognised him. The learned Counsel submitted that he was

      looking at the wall.     The learned Counsel submitted that there is no

      recovery of the revolver from accused No.3. He further submitted that

      PW4 and PW5 though have stated in the evidence that they identifiedvss                                                                           11 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      accused No.3 at the time of test identification parade and also identified in

      the Court at the time of recording of evidence, PW4 and PW5 did not lead




                                                                                
      evidence in respect of identifying accused No.3 and attributing any role to




                                                        
      him at the time of actual incident. Same is the case of PW13. She also

      said that she identified him at the time of test identification parade but in




                                                       
      the Court, no role is attributed to him with regard to the commission of

      crime. Evidence of PW6 Basraj, learned Counsel submitted, is not reliable

      on the point of recovery of G.C. notes, (exhibits 51 and 52) and five loose




                                            
      notes of Rs.20/- denomination (article E). He submitted that the panch
                             
      has worked twice in the investigation of Khar Police Station.              He is a
                            
      regular stock panch and, therefore, his evidence is not to be believed.Learned Counsel for accused No.4 submitted that accused No.4 is9.
          



      innocent and falsely implicated in this case. The recovery of Mangalsutra

      is shown at the instance of accused No.4. However, the said Mangalsutra

      when produced before the Court was not in a sealed condition. The





      identification of the said Mangalsutra by the PW4 is of no use as that

      article 'L' does not bear any special mark of identification.          He further





      submitted that no knife is recovered though the witness has stated that the

      knife was shown by the accused No.4. No knife is recovered from the

      accused No.4. He submitted that the accused was arrested on 4.9.2004

      and thereafter, identification parade was not arranged immediately but itvss                                                                             12 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      was conducted after more than one month i.e., on 16.10.2004.                   The

      articles were seized on 29.9.2004. Thus, there is a delay in the




                                                                              
      identification. He submitted that the evidence of PW4 is not reliable as




                                                      
      she admitted in the cross-examination that she had been to the police

      station for about 4 to 5 times and she remained there for nearly 20 to 25




                                                     
      minutes. The learned Counsel submitted as there is no discovery of the

      weapon from accused No.4, section 397 cannot be applied. He submitted

      that section 397 cannot be attracted as there is no recovery of the weapon




                                           
      from accused No.4.     Further, the evidence of jeweller PW10 Kukraj
                            
      Hydanram Bainiwal, who was handed over the Mangalsutra, cannot be
                           
      believed, as no receipt of purchase of Mangalsutra is produced and seized

      from the witness PW10. PW13 Vrushali in para 5 has stated in para 5 that
          

      she has identified accused No.4 at the time of the test identification
       



      parade. However, she identified the five suspects at the time of test

      identification parade including accused No.4 and she identified accused





      No.4 in the Court. However, she did not attribute any specific role to the

      accused No.4. The learned Counsel submits that the evidence of PW9

      Gurudev Zende, who was a chance witness, who stated that he was





      outside the bank, has identified the accused No.4 at the time of test

      identification parade. However, he has also identified three persons when

      he claimed that he saw two persons.vss                                                                           13 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc10.   Learned Counsel for accused No.5 submitted that the PW1 Aditya

      has attributed him a role that he asked the keys and then in a nylon bag




                                                                              
      he collected cash. The learned Counsel submitted that in the cross-examination, in para 20, he admitted that he was sitting down facing

      towards the wall and except two persons, he did not see any other person




                                                     
      in his cabin. She submitted that if at all PW1 was made to sit looking at

      the wall, then there was less opportunity for him to see the accused. She

      pointed out that he has stated in para 34, he had given the description of




                                          
      five persons.   However, he admitted that the said description is not
                            
      recorded by the police in his statement undersection 162.         The learned
                           
      Counsel for the accused No.5 argued that there is no recovery of nylon

      bag from this accused. She submitted that the presence of accused No.5
          

      is doubtful. The amount and numbers of the G.C. notes which are found in
       



      the panchanama do not tally with the G.C. notes, which are produced

      before the Court.11.   Learned Counsel for the accused No.6 submitted that accused No.6

      is a taxi driver, who was waiting outside the bank. As per the case of the





      prosecution, two persons came from the bank and fled away in the said

      taxi. He was arrested on 15.9.2004. He submitted that in evidence, PW4

      Pranali Rasam has identified accused No.6 and attributed the role that he

      had come to the bank. He is one of the dacoits, who had entered thevss                                                                           14 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      bank. She also identified accused No.6 at the time of test identification

      parade. However, she did not attribute any role to him. He submitted that




                                                                                
      no other eye witness besides PW4 have identified accused No.6.Mr.Zende, PW9, has mentioned that he could not give the number of taxi

      in his evidence and did not identify him at the time of test identification




                                                       
      parade. PW12 Hamidabanu is the owner of the taxi but she did not say

      anything incriminating against the accused No.6 but has only deposed that

      accused No.6 is a taxi driver and he used to take the said taxi on rent. The




                                            
      learned Counsel submitted in the cross-examination that she has admitted
                              
      that there were many drivers, who used to take the taxi on rent. It is further
                             
      submitted that in the list of documents (exhibit 14), the recovery of money

      in the panchanama is produced. However, no reliance can be placed on
          

      it, which is produced alongwith exhibit 14.12.   Learned Counsel for accused No.7 has submitted that PW1 Aditya,

      PW5 Kuppa Raghunath and PW13 Vrushali have identified him. PW1 has





      stated that he was standing outside the bank. He argued that only PW1

      has stated that accused No.7 was standing outside the bank and looking





      in the bank and he has identified him in the Court. However, in the cross-examination, he has admitted that though he gave the description of the

      said person, who was standing outside the bank, it was not mentioned in

      the complaint.   He has admitted that the person was looking towards thevss                                                                             15 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      bank and also towards the road.     The learned Counsel submitted that the

      Bank Manager had no sufficient opportunity to look at him and remember




                                                                                 
      how he was looking. PW4 Pranali did not mention anything about him.PW5 Kuppa Raghunath has stated in para 4 of his deposition that accused

      No.3 Vijay Thakur is the same person, who was standing outside the bank.In para 8, in the Examination in Chief, PW5 has stated that at the time of

      the identification parade, he identified two persons, who took the cash in

      the nylon bag and one person was standing outside.                  He identified




                                             
      accused No.5, who took out the cash and then identified accused No.7 as
                              
      Vijay Singh Thakur, who was standing outside the bank. He submitted
                             
      that PW13 Vrushali did not state anything against accused No.7.The learned APP has submitted that the prosecution has proved the13.
       



      charges against all the accused as all the witnesses corroborate each

      other. PW1, PW4, PW5 and PW13 are the bank employees and are the

      eye witnesses in the case.      She submitted that these witnesses have





      identified the accused Nos.1 to 5 and also accused No.6. She submitted

      that the Bank Manager, PW1 Aditya, has identified the accused No.1, 2, 3,





      5 and also accused No.7. PW4 Pranali was at the cash counter. She has

      identified accused Nos.3, 4, 5, 6 and has attributed a specific role to all the

      accused.    She has mentioned that accused No.4 has snatched her

      Mangalsutra and chain. PW5 Kuppa Raghunath, who was also working atvss                                                                              16 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      the cash counter, has identified accused Nos.2, 3, 4 and 5 alongwith

      weapons. PW13, Vrushali has identified accused Nos.1, 2, 3 and 4 and




                                                                              
      has attributed specific role to each one of them.        She relied on the




                                                      
      evidence of PW9 Santosh Ghag. She submitted that he is an independent

      witness, who was standing outside the bank and he saw two persons




                                                     
      coming outside the bank and holding revolver. He identified accused No.4

      as the same person holding the revolver.      She submitted that all the

      witnesses identified the accused persons at the time of the test




                                          
      identification parade and also in the Court at the time of their evidence.The prosecution relied on the panch witnesses, who witnessed discovery
                           
      of the weapons, currency notes and also mangalsutra. The panchanamas

      drawn undersection 27of the Evidence Act of these articles including the
          

      recovery of currency notes were proved through PW6, PW7 and PW8.PW6 has witnessed memo and panchanama, which are marked as

      exhibits 51 and 52 respectively where the currency notes i.e., two bundles





      of G.C. Notes of Rs.100 denomination and five loose notes of Rs.20/-(article F) were found at the instance of PW1. PW7 proved discovery

      panchanama at the instance of PW2 (exhibits 54 and 55) of one bundle of





      100 G.C. notes of Rs.20/- denomination (article D collectively) through

      PW8 panch, discovery panchanama and memo were drawn which are

      marked exhibit 52 in which one bundle of 100 G.C notes of Rs.20/-denomination and also 5 loose notes marked article E, were discoveredvss                                                                           17 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      and seized. The learned APP submitted that on these bundles of G.C.

      notes, a stamp of Oriental Bank of Commerce was found. Alongwith this,




                                                                              
      there is also recovery of Mangalsutra (article L) and panchanama to that




                                                      
      effect was drawn at exhibit 58. PW10 Kukraj Hydarnram Bainiwal is a

      jeweller, who has deposed that accused No.3 sold Mangalsutra to him and




                                                     
      the said Mangalsutra was recovered from him.14.   The learned APP further submitted that PW11 Santosh was working




                                          
      as a peon in the bank and a station diary entry (exhibit 88) was made as
                            
      there was an immediate reporting of the offence. The prosecution further
                           
      relied on the recovery of taxi, at the instance of accused No.6 by PW14

      Radheshyam Yadav, to which panchanama was drawn accordingly (exhibit

      71 & 72). The prosecution also relied on the evidence of PW12
          
       



      Hamidabanu Rashid, the owner of taxi. She confirmed that the taxi was

      given on rental basis to accused No.6. PW15 Prabhakar V. Gupta, has

      witnessed the panchanamas marked at exhibits 79 and 80, undersection





      27of the Evidence Act, that a knife was recovered at the instance of

      voluntary statement made by the accused No.2 Vijay, which is marked





      exhibit 79. The learned Prosecutor submitted that on 16.10.2004, test

      identification parade was conducted and all the accused were identified by

      the prosecution witnesses.    The articles which were seized from the

      accused persons were shown to the witnesses and after the identificationvss                                                                           18 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      of the articles, the statements of those witnesses were accordingly

      recorded.     She submitted that in the Court also, the witnesses have




                                                                                
      identified the articles. She argued that though the SEO, who conducted




                                                        
      the test identification parade, is not examined by the prosecution. The

      memo of test identification parade was produced before the Court undersection 294of the Cr.P.C. alongwith the application (exhibit 14).               The

      learned Counsel further submitted that though the SEO is not examined,

      this is not fatal to the prosecution. She argued that the dacoity has taken




                                            
      place in broad daylight and the witnesses have deposed that at the time of
                                 
      commission on 16.8.2004, the offenders had not covered their faces.Thereafter, they again saw them on 16.10.2004 and have identified all the

      accused when the evidence commenced in 2008. She submitted that the
          

      evidence of identification of the witnesses in the Court is reliable and it is
       



      rightly accepted by the Sessions Court by giving a positive finding. The

      learned APP has submitted that unless contradictions and discrepancies





      affect the core of the prosecution case, not to be considered as significant

      and is not a ground to discredit the witnesses.In support of her

      submissions, she relied on the case ofKunjumon @ Unni & Ors. vs.





      State of Kerala.315.    In all, the      prosecution has examined 18 witnesses.                 PW1

      Adityakumar, the Branch Manager of the Oriental Bank of Commerce at

      3 2013 ALL MR (Cri) 329 (SC)vss                                                                             19 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      Khar (W) branch has filed the FIR about the incident of dacoity which had

      taken place at the bank on 16.8.2014 at about 1.35pm. He has stated that




                                                                                
      on that day, when he was working at the counter, some persons came to




                                                        
      the bank. Out of them, one person entered the Chamber and at the point

      of revolver, he asked him to stand and face towards the wall. Then, the




                                                       
      other person took his purse, put it in his bag. They took him in the hall and

      then beyond the counters. Four employees of the Bank were also at the

      counters. They pushed all of them in the cabin, asked them to sit on the




                                            
      ground, threatened them that they would kill them, if they resist. Then one
                             
      person took the key of the cash cabin and opened the cabin; another
                            
      person put the cash in the nylon bag, one person at the point of knife,

      snatched Mangalsutra of one of the employees. Thereafter, one person
          

      put an adhesive tape around the mouth of the Branch Manager.Thereafter, at the time of committing dacoity, they pulled all wires of the

      computers and telephones. One person was standing outside the bank.They all fled away by taking a total cash of Rs.2,38,844/-. Mr.Santosh

      Ghag, PW11, a peon with the Bank, was not present in the bank at the

      relevant time. He had gone out for some work. When he returned at





      around 1.45pm, he found that the door of the cash counter was closed and

      the Bank Manager, PW1, informed him about the dacoity in the bank. He

      immediately went to the police station.vss                                                                             20 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

            PW7 Vijay Dhatrak was on duty as a station house officer at Khar

      police station. He has stated that a peon Santosh Ghag from the Bank




                                                                                
      reported about the robbery which had taken place in the Bank. Mr.Dhatrak




                                                        
      accordingly made entry in the station diary and alongwith his staff, went to

      the bank. He recorded statement of the Branch Manager, PW1 Aditya,




                                                       
      which is recorded as FIR and marked as exhibit 37.                 He recorded

      statement i.e., exhibit 37 and also made entry in the diary after returning to

      the police station, which is marked exhibit 36. Thereafter, he drew spot




                                            
      panchanama (exhibit 43). He recovered the adhesive tape from the spot
                              
      and also recorded statements of the bank staff PW4 Pranali, PW5
                             
      Raghunath, PW11 Santosh Ghagh. PW18 Dilip has stated that he had

      investigated Crime No.302 of 2004 for the offence of dacoity. He recorded
          

      further statement of Aditya Singh. Thus, these 4 witnesses stated about
       



      the commission of the offence.      PW4 Panali, PW5 Kuppa and PW13

      Vrushali, the staff of the bank, who were working at that time in the bank





      have corroborated PW1 Aditya by giving similar details as to how and at

      what time the dacoity has taken place. The prosecution has established

      the fact of the incident of dacoity at the Bank's Khar (W) branch. The





      witnesses have also established that a group of more than 5 persons had

      entered the bank and committed dacoity at the point of weapons and cash

      of Rs.2,38,844/- was stolen. Similarly, Mangalsutra of PW4 Pranali was

      robbed by the persons. Thus, the prosecution has established that thevss                                                                             21 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      incident has taken place.16.   Whether the persons who have committed dacoity are the accused

      or not is the crucial question to be answered. The learned Sessions Judge




                                                       
      has accepted the evidence tendered by the prosecution against all the 7

      accused and has convicted all the accused undersection 395of the Indian




                                                      
      Penal Code so alsou/s 397of the Indian Penal Code andu/s 37(i)(a)r/w

      35 of theBombay Police Act. Thus, all the accused are convicted under




                                           
      three charges.17.   In the case of dacoity or robbery, when the persons are unknown to
                            
      the witnesses, identification of the accused is a key issue and evidence

      tendered by the eye witnesses is the most material evidence. All the eye
          


      witnesses in the present case have stated that at the relevant time, the
       



      persons who committed dacoity in the bank, neither put any mask nor

      covered their faces in any manner. The incident had taken place in broad





      daylight at 1.35 pm. It appears that the incident of dacoity occurred nearly

      for 8 to 10 minutes and thus, they had an opportunity to see the faces of

      the offenders.   Keeping these circumstances in the background, the





      evidence of all the eye witnesses is to be assessed. PW1 Aditya has

      stated that a person who entered first was holding a revolver. He asked

      him to face towards wall. Another person having a gun asked him to take

      out his purse. Then, another person entered the cabin; put the purse invss                                                                            22 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      the bag. Then some persons were shouting 'kill him'.. 'kill him'. Then the

      first person, who pointed out revolver at him, took him out, led him beyond




                                                                               
      the counter where the other staff members were standing. Then he said




                                                      
      that one person had put a chopper around the throat of PW5 and another

      person had put chopper near the neck of Laxmi Subramaniam. Then one




                                                     
      person asked him the key of the cabin. He handed over that key to him.In his evidence, he has identified accused No.5 as Sameer, as the person

      who demanded the key.        He also said that accused No.5 alongwith




                                           
      accused Nos.4 and 2 collected the cash out of his cabin. Then accused
                             
      No.4 pulled the Mangalsutra of PW4 Pranali and accused No.2 tied a tape
                            
      around his mouth. Thus, he specifically attributed the role to accused

      Nos.2, 4 and 5. He identified one person standing outside the bank and
          

      looking at the bank as accused No.7. He also identified accused No.3 as
       



      a person, who pointed a gun at him. Then he said that accused No.1 was

      one Jitendra Thakur, who was raising voice and was holding knife. He did





      not identify accused No.6.18.   PW4 Pranali has deposed that one person had kept a knife on the





      neck of the Manager PW1 Aditya.         However, PW1 did not say that

      somebody had put knife on his neck but has stated that a revolver was

      kept on his neck. Then, PW4 has stated that one person kept knife on her

      neck and snatched Mangalsutra and gold chain. She identified that it wasvss                                                                            23 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      accused No.4 Velu, who at the point of knife, snatched her Mangalsutra.PW1 has stated that he saw accused No.4 had pulled Mangalsutra of




                                                                              
      PW4 Pranali and did not mention of use of knife at that time by accused




                                                      
      No.4.    PW4 Pranali has stated that she had seen accused No.4 on an

      earlier day in the Bank alongwith accused No.5 Sameer and she identified




                                                     
      accused Nos.4 and 5 in the Court as the persons, who had committed the

      dacoity. Then she identified accused Nos.6 and 2, who had entered the

      bank. She identified a knife, revolver (article 1) and chopper, which were




                                          
      used at the time of the commission of offence.ig                             Thus, her evidence

      corroborates the evidence of PW1 on the point of identification of accused
                            
      Nos.4 and 5.PW5 Kuppa Raghunath has stated that five persons had entered the19.
       



      bank. He said that accused No.3 had pointed out chopper to him. He has

      stated accused No.4 entered the cabin of the Manager. However, he says

      that accused No.4 pointed out a pistol at him and took him outside the





      Chamber. Then he made the Manager to sit and also asked him and

      Laxmi to sit. He also stated that accused No.4 removed the mangalsutra





      and chain of PW4 Pranali. He stated that accused No.5 was with a nylon

      bag and he took out cash and put in the nylon bag. He says that accused

      No.7 Vijay Thakur was standing outside the Bank. He identified accused

      Nos.4 and 5 and then he also stated in every subsequent paragraph of hisvss                                                                           24 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      deposition that accused No.7 is the same person, who was standing

      outside the bank.20.   Then there is another witness i.e., PW13 Vrushali. She said that 4

      to 5 persons entered the bank. One of them went to the cabin of the




                                                      
      Manager. Then, they all made them to sit, took out knife and asked her to

      sit. The persons forced Laxmi Subramanyam and PW4 Pranali to sit on

      the ground. One person entered the cabin of the Manager with revolver




                                           
      and brought him out of the cabin. One person covered the mouth of the
                             
      Manager with a cloth. One person took keys from PW4. One person
                            
      pulled her Mangalsutra.     One person took out the cash.             Thus, she

      attributed various acts to those persons and in further evidence, she

      identified accused Nos.1, 2, 3, 4 and 5, who were sitting in the dock as the
          
       



      persons who had entered the bank. In her evidence, she did not attribute

      any specific role to these accused while identifying them.21.   One more witness other than the bank employees examined by the

      prosecution is a passerby and a chance witness i.e., PW9 Gurudev





      Zende, who was standing outside the Bank at about 2pm when he saw

      two persons coming out of the bank and they boarded a taxi and went.They were holding revolver in their hands. He stated that he had identified

      those persons when he was called for identification parade. He identifiedvss                                                                            25 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      accused No.1, who came out from the bank. Then, he also identified

      accused No.4 and accused No.7, who came out of the bank and sat in the




                                                                                 
      taxi.22.     This is the total evidence on the point of identification of the




                                                        
      accused.     In the present case, the identification parade was held on

      16.10.2004 by the SEO. However, the prosecution neither examined the

      SEO nor the panchas, who were present at the time of the test




                                             
      identification parade.    At the relevant time, the report of the test
                               
      identification parade was produced. The witnesses have deposed in their
                              
      evidence that they have identified the accused person at the time of the

      test identification parade. Undersection 291-Aof Cr.P.C., memo can be

      proved. It is to be believed that the identification parade was conducted in
          
       



      Arthur road jail and these witnesses were taken for identification of the

      accused dacoits. However, witnesses were extensively cross examined on

      the point of procedure followed at the time of test identification parade.PW1 has given admission in the cross examination that at the time of

      identification parade, the police were present. It is obligatory on the part of





      SEO to follow the procedurelaid down bylaw which is mentioned in the

      Criminal Manual. This procedure is required to be followed step by step

      as it eliminates all the possibilities of tampering, manipulations or

      deliberations      in      respect      of      the        identification            ofvss                                                                              26 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      the accused. If the procedure is not followed, then the evidence given by

      the witnesses on the point of identification becomes doubtful. If there




                                                                                
      would have been no cross-examination in respect of the procedure




                                                        
      followed at the time of conducting test identification parade by the

      defence, then the memo of test identification parade could have been




                                                       
      proved as it is by the prosecution.        The present evidence of test

      identification parade is of no use to the prosecution. Thus, in the present

      case the evidence tendered by the eye witnesses accused persons in the




                                            
      Court on the point of identification is the only available substantive
                             
      evidence to the prosecution.23.   Thus, the evidence of all the witnesses on the point of the

      identification is required to be weighed. As the incident of dacoity has
          
       



      taken place, the bank employees were definitely under shock and were

      terrorised. The dacoits were holding weapons as stated by the witnesses.They were holding chopper, knife, revolver and gun. There is no recovery





      of either revolver or gun but one knife is found. The recovery of knife is at

      the instance of accused No.2 and PW15, as panch, has stated about it





      under panchanama marked exhibit 79. Only PW4 has identified this knife.However, it is to be noted that PW1 has deposed that accused No.2 has

      tied the adhesive tape around his mouth. Thus, if at all, the adhesive tape

      was put around the mouth of PW1, at that time, he could not have held thevss                                                                             27 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      knife and even if he was holding knife, PW1 did not say that accused was

      holding the knife. No witness says that the accused No.2 was holding




                                                                              
      knife at the relevant time. PW1 has stated that he has seen one person




                                                      
      holding chopper around the throat of PW5 Krupa Raghunath and other

      person around the neck of Laxmi. However, he did not identify either of




                                                     
      them. PW5 Raghunath has stated that one person pointed a chopper at

      him and he identified accused No.3 Ravi Shankar as the person who

      pointed out chopper at him. However, PW1 has deposed that accused




                                          
      No.3 Ravi Shankar is the one who pointed out gun at him and therefore,
                            
      he identified him in the Court. Therefore, there is a confusion whether
                           
      accused No.3 was holding a gun or chopper and whether Ravi Shankar

      threatened at the point of chopper to PW5 or whether he threatened PW1
          

      at the point of gun or not. PW7 was identified as a person, who was
       



      standing outside the cabin of PW1 and also by PW5.             However, it is

      difficult to believe this evidence because as per their version, accused





      No.7 was standing outside the bank. If at all, the person was standing

      outside the Bank and five persons had entered the bank and they were

      doing many activities and they also threatened the bank staff, it is very





      difficult to accept the identification of accused No.7 by PW1 and PW5. So

      also, the evidence PW9 Zende, who is a chance witness, is found very

      doubtful. At the relevant time, when he was standing outside the bank, two

      persons came hurriedly. They were holding revolver. They sat in the taxivss                                                                           28 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      and went away. It is true if a person is holding a revolver, it is not a normal

      behaviour and therefore, the person holding revolver definitely will catch




                                                                                 
      the attention of all passersby. However, he was standing near the bank




                                                         
      and those persons hurriedly sat in the taxi and went away. He identified

      accused Nos.1, 4 and 7. He stated that accused No.7 came out of the




                                                        
      bank and was sitting in the taxi. He also saw accused No.4 and accused

      No.1 as they came out of the bank. Thus, when he claimed that he saw

      two persons with revolver, his evidence identifying three persons is




                                             
      discarded.     However, the evidence of all the eye witnesses on
                              
      identification of accused Nos.4 and 5 is found consistent.24.   Thus, there is sufficient evidence that accused No.5 was holding

      nylon bag. He took out cash and put it in the nylon bag and therefore they
          


      remember him. It is very natural for the bank people who deal with cash
       



      all the time to notice a person who is taking away the cash and putting

      cash in the bag. Witnesses have identified accused No.5 in the Court.They have also stated that they identified accused No.5 at the time of the

      test identification parade.   The fact of holding of the test identification

      parade at Arthur Road jail is proved by the prosecution. However, the





      manner in which the parade was conducted, which is very important, is not

      proved. However, it is to be said that this undoubtedly is an opportunity to

      the witnesses to see the accused persons. If at all they had seen those

      persons earlier, their memory was revived and, therefore, when thevss                                                                              29 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      accused Nos.4 and 5 came in the Court, they identified them. Moreover,

      accused No.4 & 5, as per the evidence of PW4 and PW1, have come one




                                                                                
      day prior to the incident in the bank and PW4 had an occasion to see




                                                        
      them. The evidence against accused No.4 is also found cogent. Accused

      No.4 had pulled the mangalsutra of PW4 Pranali. Therefore, PW4 had




                                                       
      every reason to remember the face of accused No.4 as he came near her

      and took away her mangalsutra. This was the special reason for her to

      remember his face. Moreover, accused No.4 had come to the bank on a




                                            
      day prior to the incident and at that time, PW4 had an opportunity to see
                             
      him. Accused No.4 is identified by PW1, PW4, PW5 and PW13 and they
                            
      all attributed him to the act of pulling of Mangalsutra. Thus, the evidence

      of these witnesses against the two accused with regard to their
          

      identification corroborate each other. Certain circumstances are in favour
       



      of the prosecution i.e., uncovered faces of the accused and opportunity to

      see them for a few minutes in broad daylight, is also found reliable. The





      learned Sessions Judge has rightly believed the evidence against these

      two accused. However, the evidence against other 5 accused persons on

      the point of identification is absolutely shaky. There are contradictions and





      hence, cannot be relied. It is to be noted that many times, when the

      offence of robbery or dacoity takes place, the witnesses shun the offence

      and the offenders also and, therefore, they naturally tend to accept that a

      person who is caught by the police must be the offender.                Thus, thevss                                                                             30 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      identification is somehow out of imagination which is genuinely thought as

      truth due to impact of the incident. The evidence of identification is always




                                                                                  
      a master stroke in the case of robbery committed by unknown persons.The Court may seek corroboration based on circumstances i.e., recovery

      of either weapon or of the stolen articles, to support fact of identification.25.   On the point of recovery, the prosecution has tendered evidence of

      PW6 Basraj, who has stated that at the instance of accused No.3 Ravi




                                              
      Shankar, a currency note bundle of denomination of Rs.20/- with stamp of
                               
      'Oriental Bank of Commerce' and also five loose currency notes were

      recovered under Memorandum at exhibits 51 and 52 (article E). However,
                              
      the A.P.P. cross-examined the witness and declared him hostile. Then the

      A.P.P. pointed out towards accused No.1 Jitendra Thakur as he was
          


      present in the police station and to which PW6 answered in the affirmative.Thus, there was confusion in the mind of PW6 whether it was accused

      No.3 or accused No.1, who made disclosure in respect of currency notes.PW7 Jessi Mendonca has deposed that on 13.9.20014, at the instance of

      accused No.2 Vijay More, a recovery of 100 G.C. notes of denomination of

      Rs.20/- was recovered and seized under memo of exhibits 54 and 55,





      marked article D. However, the cross-examination for accused No.2 is said

      as declined as his advocate was absent. Thus, a sufficient reasonable

      opportunity was not given to accused No.2 to cross-examine a material

      witness on the point of recovery of evidence which was adduced againstvss                                                                               31 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      him. PW8 Vishwanath Parshuram Sawant has deposed that on 10.9.2004

      at the instance of accused No.4 Jitendra Thakur, 100 G.C. notes of




                                                                               
      denomination of Rs.20/- and 5 G.C. notes of denomination of Rs.20/- were




                                                      
      recovered (article E) from Jitendra Thakur under memorandum exhibits 51

      and 52. Thus, this witness was examined to prove exhibits 51 and 52 as




                                                     
      PW6 was confused about identification.      However, this witness in his

      cross-examination gave admission that he has acted as a panch in Khar

      police station for about 10 to 12 occasions. In the present case also, he




                                           
      was against called by the police on 29.9.2004 and panchanama of
                             
      identification of mangalsutra was drawn at exhibit 58. Thus, PW8 is a
                            
      stock panch and, therefore, his evidence is appreciated with a pinch of

      salt. PW15 is Prabhakar Vishwanath Gupta. He has deposed that at the
          

      instance of accused No.2 Vijay More, a knife was recovered at
       



      panchanama exhibits 79 and 80. It is to be noted that this knife was

      identified by PW4.    However, it is in the evidence of eye witnesses.Nobody has stated that accused No.2 was holding a knife at the time of

      the incident. Moreover, identification of these articles by the witnesses

      cannot be given much value as it is difficult to identify the weapons which





      were used at the time of dacoity. There is one more panchanama that is,

      PW14 Radheshyam Shriram Yadav. He has deposed that at the instance

      of accused No.6 Sikandar, a taxi which was used for running away, was

      identified under panchanama at exhibit 72.        Such panchanama i.e.,vss                                                                            32 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      identification of taxi is of no value because it is not a recovery

      panchanama. Thus, the panchanamas do not inspire confidence and do




                                                                                      
      not establish the case of the prosecution on the point of recovery of the




                                                              
      articles. The trial Court ought not to have relied on these panchanamas.Thus, in the absence of any other circumstantial evidence, the case of the




                                                             
      prosecution is not established against accused Nos.1, 2, 3, 6 and 7.26.     It was argued that the accused though were represented by the




                                                      
      respective advocates at the time of the trial, when their advocates were
                                    
      absent at the time of cross-examination, the cross-examination by the

      respective accused is shown as declined. The learned Counsel for the
                                   
      accused have submitted that if the Court has denied the opportunity to

      cross-examine the witness, then, the benefit of such a situation is to be
          


      given to the accused in appeal. He relied on the decision of the Division
       



      Bench of this Court in the case of Sandeep @ Gotya Vishwanath Shinde

      vs. State of Maharashtra4. In the said case, a proper and fair opportunity





      to the accused to defend himself was not given and the accused was not

      made aware that he wanted to cross-examine or not in the said matter.Therefore, the Division Bench has expressed a view that it was necessary





      to give an opportunity to the accused to cross-examine the prosecution

      witnesses which are material witnesses. So matter was remanded. In the

      present case, this Court has already held that there is no sufficient reliable
      4 Criminal Appeal No.412 of 2009 decided on 11.7.2013vss                                                                                   33 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      evidence against accused Nos.1,2,3,6 and 7. It is true that at the time

      examination of some of the witnesses, the advocates of some of the




                                                                              
      accused were absent and so the learned Judge has recorded that




                                                      
      accused has declined to cross-examine the witness. While recording so, it

      is necessary for the trial Judge to mention that the accused is made aware




                                                     
      of his right to cross-examination and then, the Court has to consider

      whether he wants adjournment or he is ready to go ahead with the cross-examination. Therefore, on this point, cross-examination by accused No.4




                                          
      and accused No.5 is now to be seen. At the time of the recording of the
                            
      evidence of PW1, on 16.5.2008, nobody cross-examined the said witness
                           
      and hence, cross-examination by accused Nos.4 and 5 is also shown as

      declined as their advocates were absent.        The witness was cross-examined only by advocate of accused Nos.1 and 2.                However, on
       



      4.2.2011, again PW1 was recalled for further cross-examination and

      record discloses that on that day, the advocate for accused Nos.4 and 5





      have cross-examined him. The cross-examination of PW4 was conducted

      by the advocate for accused No.4 and cross-examination of accused No.5

      was stated - advocate absent,     so declined by the accused.              Cross-examination of PW5 is shown as declined by accused No.4 and 5 as their

      advocates were absent.      Thereafter, the cross-examination of PW13

      Vrushali, was declined by accused No.4 as her advocate was absent.However, she was cross-examined by the advocate appearing for accusedvss                                                                           34 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      No.1 and accused No.5. Thus, from the record it is found that further

      cross-examination of PW1 was conducted on 4.2.2011 by advocate




                                                                             
      Padam Singh for accused No.4 and accused No.5, who is appearing for




                                                    
      accused No.1. Cross-examination of PW4 was declined by accused No.1

      that is his lawyer Padam Singh. However, the advocate for accused No.5




                                                   
      was shown as absent and hence, declined. However, again, at the time of

      cross-examination of accused No.13, Mr.Padam Singh, has cross-examined him for accused Nos.1 and 5. Thus, it appears that accused




                                         
      No.5 has requested the advocate Mr.Padam Singh to appear for him.Therefore, PW1 so also PW13 were cross-examined by advocate
                           
      Mr.Padam Singh for accused No.5. However, surprisingly, Mr.Padam

      Singh did not cross-examine PW5 for accused No.5 though he cross-examined extensively for accused No.1. Therefore, evidence of only PW4
       



      cannot be taken into account for accused No.5. However, the evidence of

      PW1, PW4 and evidence of PW13 can be considered against accused





      No.5. So also evidence of PW1 and PW4 is to be read against accused

      No.4 as both the witnesses were cross-examined extensively by their

      respective advocates and cross-examination of PW13 and PW5 was





      declined as the Counsel for accused No.4 was absent.27.   Both the learned Counsel for the accused Nos.4 and 5 have

      challenged the identification of the accused Nos.4 and 5 mainly on the

      ground that there was delay in identification as the test identificationvss                                                                          35 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      parade was conducted nearly one month after their arrest and none of the

      witnesses gave description of the accused persons when their statements




                                                                                
      were recorded. It is true that in the evidence of all the witnesses, they did




                                                        
      not describe the persons, who had come as assailants and thus, the

      submissions of the learned Counsel that there is no description of the




                                                       
      accused persons given by the witnesses to the police officer immediately

      after the assault is correct. However, it is a duty of the police officer to

      question the witnsses and to ask them to describe the assailants. If such




                                            
      question is not put up, then the witnesses may not give the description as
                             
      the witnesses do not know what is to be stated at the time of recorded
                            
      statements undersection 161of the Criminal Procedure Code.                    It is

      already held that in the absence of proper proof of identification parade,
          

      the evidence of the identification of the accused Nos.1, 2, 3, 6 and 7 at the
       



      time of the test identification parade appears doubtful and therefore, is not

      believed. There are bound to be some contradictions in attributing the





      roles to the accused. However, if the witnesses corroborate each other on

      material points, then, the said evidence is found believable. PW1 has

      identified accused No.4 that he pulled Mangalsutra of PW4 and he has





      identified accused No.5 as who put cash in the nylon bag. This evidence

      is corroborated by the evidence of PW4 and PW4 has seen them on the

      earlier date.   PW5 also corroborates the evidence on the point of

      attributing a specific role to PW4 and PW5. Under such circumstances,vss                                                                             36 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      the identification of PW4 and PW5 is proved by the prosecution that they

      were present at the time of dacoity and they are one of the offenders.28.   It was argued that neither knife nor any weapon was recovered from

      accused No.4 and so also there is a contradiction in respect of the type of




                                                      
      weapon he was holding. In the absence of recovery of a weapon, the

      offence of dacoity with use of weapon can be proved if the evidence of the

      eye witnesses is concrete.    In the present case, PW1 has stated that




                                           
      accused No.4 Velu pulled mangalsutra of PW4 Pranali. However, PW1
                             
      did not say either accused No.4 or accused No.5 was holding any
                            
      weapon.29.   PW4 has stated that accused No.4 pointed out knife and also took
          


      her mangalsutra and gold chain. She did not say that accused No.5 was
       



      holding any weapon. PW4 in her cross-examination for accused No.4, in

      paragraph 12, gve admission that she was very confused because of the





      dacoity and was very scared when they pointed out knife at her. She

      admitted that she did not mention in her statement that knife was rusted.Evidence of PW4 could not be tested in the cross-examination on the point

      of identification of accused No.4 and that he was holding knife when he

      pulled mangalsutra. In fact, when the dacoity took place, all the bank

      employees who are eye witnesses were definitely terrorised and invss                                                                            37 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      confused state of mind. She did not state anything about accused No.4

      that he was holding any weapon.30.   PW5 has said that accused No.4 pointed out a pistol at him and

      took him outside the Chamber. Then he also attributed that he is the one




                                                       
      who pulled Mangalsutra. However, he did not state that accused No.5

      was holding any weapon. Then PW13 Vrushali has deposed that she has

      stated that one person asked PW4 Pranali to sit on the ground and took




                                            
      out her Mangalsutra. She identified accused No.4 and accused No.5, who
                             
      were sitting in the dock. However, she did not say anything that either
                            
      accused No.4 or accused No.5 was holding any weapon at the time of

      dacoity.31.   The evidence of all the eye witnesses definitely gave a correct
       



      picture of how the dacoity was committed by a group of 5 to 6 persons.Some of them were armed with weapons like revolver, knife or chopper.However, as per the evidence of each eye witness, a role attributed by

      them to each accused and their identification if sifted, then, it can be seen

      that there are inter se contradictions on the point of identification and the





      role attributed to all the accused except accused No.4 and accused No.5.32.   The learned Prosecutor has placed heavy reliance onKunjumon @

      Unni & Ors.(supra).      In the said case, a girl of 11 years and hervss                                                                             38 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      grandmother were robbed in their house by the accused person and

      another one. In the said case, the evidence was recorded nearly 6 years




                                                                                
      after the incident. No test identification parade had taken place and yet,




                                                        
      the child witness was accepted by the Sessions Court and also conviction

      confirmed by the High Court. The said finding of proof of the identification




                                                       
      by the child witness in the Court, in the absence of test identification

      parade, after six years, was held believable by the Supreme Court. Inthe

      said judgment, the Hon'ble Supreme Court held that the test identification




                                            
      parade should be held at the earliest so that the memory of the witness
                             
      should not fade in the meanwhile. Not holding test identification parade is
                            
      not fatal to the case of the prosecution. The Supreme Court held that the

      trial Judge will need to be circumspect in accepting the identification of an
          

      accused by a witness in Court if the accused is a stranger to the witness.In the said case, the girl was when robbed by one accused; the other one

      was standing outside. So, she had an opportunity to watch him closely.He had threatened her. It the said case, there was no meaningful cross-examination of the child witness and it was recorded that her evidence is

      clear, unambiguous and nothing adverse was elicited during the cross-examination and thus, her evidence was accepted.                  However, the

      evidence and facts in the said case are different from the facts of the

      present case. In the present case, there are 7 accused persons.              Out of

      them, five went inside and one was standing outside. As per the case ofvss                                                                             39 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      the prosecution, the incident has taken place within 10 minutes.                The

      accused were doing many activities like one holding chopper, one pointing




                                                                               
      revolver, another pulling off the wires, another bringing all the employees




                                                       
      together and locking them in a cabin, collecting the cash, snatching

      Mangalsutra, chain, etc. Thus, naturally, the attention of the witnesses was




                                                      
      divided on many persons and so also various activities.            So also the

      witnesses are cross-examined at length by some of the accused on the

      point of identification and the incident. After considering the evidence of




                                           
      the witnesses, the identification by some of the witnesses of some
                             
      accused can be accepted. However, the identification of all the witnesses
                            
      of accused Nos.1, 2, 3, 6 and 7 is found doubtful.33.   Thus, on the point of use of weapon, evidence against the accused
          


      No.4 is found reliable and hence, is accepted. Undersection 397of the
       



      Indian Penal Code, at the time of considering dacoity, if an offender uses

      any deadly weapon or causes grievous hurt to any person or attempts to





      cause grievous hurt, then, the offence under section 397 takes place. If a

      person at the time of committing dacoity, uses weapon to cause hurt, then,

      the offence is committed undersection 397of the IPC. Therefore, if a





      person at the time of dacoity is not holding any weapon or if any weapon is

      not used by a particular person, then he cannot be held guilty for the

      offence under section 397 though he could be held responsible for the

      offence under section 395 i.e., committing dacoity. Thus, in the presentvss                                                                            40 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).doc

      case, as the witnesses could not tender consistent evidence regarding the

      use of weapon by each of the accused but general statements were made




                                                                                 
      that assailants were armed with weapons, all the accused cannot be held




                                                         
      guilty for offence punishable under section 397. Thus, the finding given by

      the trial Court on the point of commission of dacoity i.e., under sections




                                                        
      395 and 397 and also undersection 37(i)(a)r/w 135 of theBombay Police

      Actholding all of them guilty under all these charges is to be set aside

      except against accused Nos.4 and 5. Accused No.5 also is to be held




                                           
      guilty of the offences under section 395 and not other sections.34.   In these circumstances, the impugned order is modified as under:i)     The conviction of accused Nos.1, 2, 3, 6 and 7 under all

            charges is set aside. Accordingly, the accused Nos.1, 2, 3, 6 and 7
          
       



            are acquitted from all the charges.ii)    The conviction of accused No.4 undersections 395and397of the Indian Penal Code andsections 37(i)(a)r/wsection 135of the

            Bombay Police Act is confirmed and maintained.iii)   The conviction of accused No.5 undersection 395of the

            Indian Penal Code is confirmed and the conviction and sentence

            undersection 397of the Indian Penal Code andsection 37(i)(a)r/w

            135 of theBombay Police Actis set aside.vss                                                                              41 / 42::: Downloaded on - 15/04/2014 22:26:25 :::apeal.1110.2012+(J).dociv)   On the point of quantum, the learned Counsel for accused




                                                                               
            No.4 has submitted that accused No.4 is in the prison since




                                                       
            15.9.2004 and the learned Counsel for accused No.5 has submitted

            that accused No.5 is in the prison since 6.10.2004 and therefore




                                                      
            their sentence of 10 years imprisonment be modified as they have

            already completed more than 9 years and six months in prison. It is

            true that both the accused Nos.4 and 5 have been in prison for more




                                            
            than nine years and six months. Accordingly, accused Nos.4 and 5
                              
            are sentenced to the period of imprisonment already undergone
                             
            from the date of their arrest.34.   All the appeals are disposed of in the above terms.35.   In view of the above, the criminal applications are also disposed of.(MRS.MRIDULA BHATKAR, J.)vss                                                                            42 / 42::: Downloaded on - 15/04/2014 22:26:25 :::