JUDGMENT : ( 1. ) THIS judgment shall dispose of Criminal Appeal no. 230 of 1979 (Chhote alias Chhotelal v. The State of Madhya Pradesh) as well. ( 2. ) THIS is an appeal against an order of conviction, recorded by the first Additional Sessions Judge, Bhind, convicting the appellant under section 395 and 397 of the Indian Penal Code and sentencing him to seven years rigor us imprisonment on each count, in Sessions Trial No. 9 of 1979 through judgment dated 25-7-1979. ( 3. ) THE appellants along with four others were tried for offences under section 395 and 397 Indian Penal Code on the allegations that in the night of 15-1-1978, they committed dacoity along with others at the houses of baburam, Rambharose, Ramdayal and Asharam. ( 4. ) PROSECUTION case is that in the intervening night of 15-1-1978 and 16-1-1978, some persons committed dacoity in the houses of Baburam, rambharose, Ramdayal and Asharam. It is also alleged that miscreants also fired gun-shots to threaten the occupants of the house. It is further alleged that the miscreants took away gold and silver ornaments, cash, wrist watch etc. in the above incident. Baburam lodged the report about the incident at police station, Gonad on 15-1-1978 at 8 30a. m. The defence of the convicted accused was that they have been falsely implicated and they have not committed any offence. On behalf of the prosecution about 17 witnesses were examined and after taking into consideration the articles recovered from the miscreants and the evidence given by the witnesses, the learned Additional Sessions Judge convicted Ram Kishan as mentioned above and Chhote alias Chhotelal under section 395 Indian Penal Code for seven years rigorous imprisonment and for offence under section 397 Indian penal Code again for seven years rigorous imprisonment with a direction that the sentences shall run concurrently. ( 5. ) THE learned counsel Shri Rajeev Gupta and U. N. Phatak submitted before me that the alleged articles, recovered from the miscreants are khangwari, Barrah and Chura. These articles were recovered on the information given by one of the miscreants, from Munnilal (P. W. 17 ). The articles were pledged with Munnilal (P. W. 17 ). He has produced the document evidencing the pledge and signed by Chhotelal and the appellant. These articles were recovered on the information given by one of the miscreants, from Munnilal (P. W. 17 ). The articles were pledged with Munnilal (P. W. 17 ). He has produced the document evidencing the pledge and signed by Chhotelal and the appellant. It was further submitted that these articles are of common use and even assuming that these were identified by the prosecution witnesses, it will not lead to any inference that these articles were taken when the alleged offence was committed. The question of identification of such articles came before this Court in Sarveshwar Prasad v. State of M. P. , (1977 MPLJ 620=1977 J L J 583.) and this Court has observed as under:- "as regards absence of particular identifying marks on the articles, we may point out, that in advancing this criticism it is forgotten that small and even nice points of difference distinguishing one thing from others of the same kind may merely by the frequent sight of them and without any special attention to them make an impression on the mind. They are component parts of the thing and go on to make the whole of which the mind receives an impression. In this case the impression is the general appearance of the thing. This sort of impressions is exceedingly common : a workman has it of his tools and most people have it of their clothes, ornaments and other things they are frequently seeing, handling or using. It occurs every day that by remembrance of their general appearance a person recognises his tools, dress, ornaments and other property. Observation teaches that such identification may be safely relied upon. At the same time, a witness would not be able to formulate his reasons for the identification since it is based upon general untranslatable impressions of the mind. It would, therefore, be fatuous to discredit such identification on the ground that reasons are not being formulated for them. " Therefore, the criticism levelled against identifying the articles as their own by the prosecution witnesses. I am not in a position to accept and I reject the same. ( 6. ) THE next point which was argued before me was that it has come in evidence that when the alleged incident took place, it was a dark night. " Therefore, the criticism levelled against identifying the articles as their own by the prosecution witnesses. I am not in a position to accept and I reject the same. ( 6. ) THE next point which was argued before me was that it has come in evidence that when the alleged incident took place, it was a dark night. Further, it has also come in evidence that the miscreants, while indulging in the incident, had their faces covered by Duttas. (Pieces of cloth ). Therefore, the learned Court below fell in error in believing that the witnesses could identify the miscreants. Abivaran Singh (P. W. 14) in para 3 of his statement, has stated that the dacoity took place in dark night and all the miscreants covered their faces and as such, he could not identify the miscreants at the time of the dacoity. But the prosecution witnesses have said in their evidence that the miscreants had torch with them and because they were flashing the torch light, they could identity the miscreants. The other criticism levelled against the prosecution evidence is that the prosecution did not hold identification parade immediately, but the appellants were arrested on 22-1-1978 and identification parade was held on 7-2-1978 and it is not explained why there was such a delay on the part of the prosecution in holding the identification parade. Further, the learned counsel submits that the alleged identification parade was nothing short of a farce, because the accused were shown to the prosecution witnesses or there was possibility of the prosecution witnesses seeing the accused. After going through the evidence of the investigating officer, I do not find any explanation for conducting the identification parade after such a long delay. This point came up before this Court in Bari Shankar and another v. The State of M. P. , (1977 Cr. LR (MP) 316.) and it was held therein as under:- "the conduct of the witness appears to us to be most unnatural and we are not prepared to believe that if the witness had in fact seen the deceased and the accused at the Bus-stand, he would not have disclosed this fact to anybody even after having come to know that the whereabouts of the boy were not known for six days. That is not all. The witness also does not appear to us to be independent. That is not all. The witness also does not appear to us to be independent. A definite question was put to him whether a case was instituted against him for stabbing accused harishankar. He denied this fact but in the very next sentence he stated that he does not know whether he was arrested and was released on bail. The witness appears to us to be a liar. The witness has also stated that his statement was not recorded by the Sub-inspector of Police Pathak nor enquiries were made from him. In our opinion, no reliance can be placed on this witness. The accused were arrested on 2-12-1975 and the identification parade was held on 10th January, 1976 after one month and 8 days. At the time of identification parade the accused objected that they had been shown to the witnesses at the police station itself. We find that a note to that effect is contained in the identification memo also (Ex. P. 34 ). There is no evidence on record that the accused were kept Ba Parade from the time of their arrest till the identification parade was over, so that the witnesses had no opportunity to see them. We are of opinion that no reliance can be placed on the evidence of Dharmalal (P. W. 26 ). " Therefore, I am of the view that the identification parade held by the prosecution is of no help to hold that the appellants were the persons who are responsible for committing the alleged offence. ( 7. ) REGARDING identification parade, it is also submitted that the identification parade memos, go to show that proper care was not taken for seeing that the identity of the alleged offenders was kept secret. In one memo, I find that the Officer has written a note that to conceal the identification mark on one of the miscreants, a chit was pasted on the mole on the face of the miscreant, while in the other memo, I do not find such a remark. Therefore, it will be difficult for me to hold that the identification parade of the miscreants was proper. ( 8. ) NEXT, it was submitted that there is a difference between an offence under sections 395, Indian Penal Code and 397, Indian Penal Code. Therefore, it will be difficult for me to hold that the identification parade of the miscreants was proper. ( 8. ) NEXT, it was submitted that there is a difference between an offence under sections 395, Indian Penal Code and 397, Indian Penal Code. The difference is that if at the time of committing robbery or dacoity, the offender used deadly weapons, then an offence will be under section 397, Indian penal Code, otherwise, it will be covered under section 395, Indian Penal code. The distinction was brought out clearly in Phool Kumar v. Delhi administration, ( (1975) 1 S C C 797. ). The relevant observations in the above judgment are as under:- "the accused alongwith three associates committed robbery. The accused armed with a knife and one of his associates armed with a small gun terrorised the employees of a service station into handing over the keys and after opening the office decamped with the cash. The thumb impression of the accused was found on the cash box. Held: the term offender is confined to the offender who used any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract section 397 for the imposition of the minimum punishment of another offender who had not used any deadly weapon. In the present case the accused was armed with a knife, a deadly weapon sufficient to frighten and terrorise the victims. Any other overt act, such as brandishing of the knife or causing of grievous hurt with it was not necessary. to bring the offender within the ambit of section 397 of the Penal Code. The anomaly created by the use of the word "uses" in section 397 and "is armed" in section 398 is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. If the weapon was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to using the weapon within the meaning of section 397. " Relying on this, it was submitted that unless it is proved by the prosecution that some deadly weapon was used by the appellant while committing the offence, the appellant cannot be convicted under section 397, Indian Penal code and that being so, the conviction and sentence passed by the learned additional Sessions Judge cannot be maintained. In my opinion, this submission has some force and, therefore, as the prosecution has not proved that at the time of committing of dacoity the appellants used any deadly weapon, their conviction under sections 397 and 395, Indian Penal Code, I will have to set aside and I set it aside accordingly. ( 9. ) THE question now remains is as to whether they can be convicted under any other section. The articles which were recovered from then and which they had pledged with Munnilal, the appellants do not claim to be their own. As to identifying the articles, I have already said above. There cannot be any dispute that the articles recovered from the accused belong to sukirti (P. W. 13) and Kailash (P. W. 5 ). Therefore, these articles will be stolen articles and they were recovered from the possession of Munnilal (P. W. 17) and showing that these articles belonged to the appellants, they have pledged them. The document is Ex. There cannot be any dispute that the articles recovered from the accused belong to sukirti (P. W. 13) and Kailash (P. W. 5 ). Therefore, these articles will be stolen articles and they were recovered from the possession of Munnilal (P. W. 17) and showing that these articles belonged to the appellants, they have pledged them. The document is Ex. P/21 and the entry shows the thumb impressions of the appellants. If the property belonged to Sukirti (P. W. 13) and Kailash (P. W. 5), the appellants had no right to pledge them and knowing full well that the property does not belong to them, they pledged it with Munnilal (P. W. 17 ). Therefore, the offence under section 411, indian Penal Code is clearly made out. ( 10. ) IT was submitted before me that the prosecution has not proved that the property was stolen property and that presumption could not be raised as the recovery was after many days. Learned counsel has referred to me to Sheo nath v. The State of U. P. 4. The relevant observations from the said Judgment are as under :- "in the present case three presumptions are possible from the recovery of the stolen goods from the appellant three days after the occurrence of the dacoity : (1) that the appellant took part in the dacoity; (2) that he received stolen goods knowing that the goods were stolen in the commission of a dacoity; and (3) that the appellant received these goods knowing them to have been stolen. The choice to be made, however, must depend on the facts proved in this case. This section was considered by this Court in Sanwant Khan v. State of rajasthan. This Court after considering some High Court cases, observed : "in our judgment no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. Where, however the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof. The appellant is stated to be a cloth merchant and he may well have acquired these goods as a receiver. Suspicion cannot take the place of proof. The appellant is stated to be a cloth merchant and he may well have acquired these goods as a receiver. It has not been shown that in the village in which the appellant lived it was known that a dacoity had taken place and goods had been stolen in the dacoity. On the facts of this case it seems to us that the only legitimate presumption to be drawn is that the appellant knew that the goods were stolen but he did not know that they were stolen in a dacoity. The appellant, therefore can only be convicted under section 411, Indian penal Code". Therefore, relying on the observations given above, the appellants can be convicted under section 411, Indian Penal Code as they have dishonestly either retained or received stolen property knowing or having reason to believe the same to be the stolen property. ( 11. ) NOW, I will have to consider the question of sentence. The appellants have already undergone sufficient jail sentence, and, therefore, in my opinion, that sentence will be enough to meet the ends of justice. I, therefore, reduce the sentence to the extent already undergone by them. ( 12. ) THE result, therefore, is that the appeal is allowed partly. The conviction and sentence passed against the appellants by the learned Additional Sessions Judge are set aside. The appellants are convicted under section 411, Indian Penal Code, but their sentence is reduced to the extent already undergone by them. The appellants are already on bail. Their bail bonds shall stand discharged. Conviction changed to section 411, I. P. C. and sentence reduced to already undergone.