JUDGMENT (ORAL) M.G. Chaudhari, J. - These appeals arise out of order of conviction and sentence of the respective appellants in Sessions Case No. 356 of 1989 recorded by the learned Additional Sessions Judge, Greater Bombay, dated 31.3.1992. 2. There were two separate incidents of robbery in quick succession at Lala Lajpat Rai Road, Worli, Bombay on the night of 16.8.1988. In the first incident two persons i.e. Harish Jagtap (P.W. 1) and Vasant Gaikwad (P.W. 4) were robbed of their wrist watches. In the second incident, Rajmanikam (P.W. 2) was robbed of his wrist watch. The appellants in these appeals were prosecuted for those 3 robberies in the aforesaid Sessions Case. For the three offences, each of the appellants was separately convicted under section 392 read with section 34 I.P.C. For the first two robberies in respect of P.W. 1 and P.W. 4, the appellants have been convicted under section 392 read with section 34 I.P.C. and a sentence of R.I. for 5 years and a fine of Rs. 200/- in default a sentence of further R.I. for 2 months has been imposed on each of the appellants. Further, accused nos. 1, 3 and 4 have also been convicted under section 392 read with section 397 I.P.C. for which a sentence of R.I. for 7 years has been imposed on each of the appellant-accused Nos. 1, 3 and 4. For the robbery in respect of Rajmanikam (P.W. 2) also, the appellants have been convicted under section 392 read with section 34 I.P.C. and a sentence of R.I. for 5 years and a fine of Rs. 100/-, in default a sentence of further R.I. for 1 month has been imposed on each of the appellants Additionally accused Nos. 2 and 4 have been convicted under section 392 read with section 397 I.P.C. and a sentence of R.I. for 7 years has been imposed on each of the said accused. The substantive sentences of each of the appellants have been ordered to run concurrently. 3. Appeal No. 331 of 1992 has been preferred by original accused No. 3 Rajkumar Bhikam Dhabi against his conviction and the sentences imposed upon him. 4. Appeal No. 334 of 1992 has been preferred by original accused No. 2 Vinodlal Ananda Thakur against his conviction and the sentences imposed upon him. 5. 3. Appeal No. 331 of 1992 has been preferred by original accused No. 3 Rajkumar Bhikam Dhabi against his conviction and the sentences imposed upon him. 4. Appeal No. 334 of 1992 has been preferred by original accused No. 2 Vinodlal Ananda Thakur against his conviction and the sentences imposed upon him. 5. Appeal No. 504 of 1992 has been preferred by Original accused No. 1 Vijaykumar Amarkumar Thakur against his conviction and the sentences imposed upon him. 6. The case of the prosecution, in brief, is as follows: (i) On 16.8.1988 at about 1.20 a.m. Harish Rama Jagtap (P.W. 1.) and Vas ant Kashinath Gaikwad (P.W. 4) were passing by the Lala Lajpat Rai Road, Worli, Bombay They were friends. They had gone to S.T. bus stand to see off a friend and were returning to their residence, As they were near the entrance gate of the National Sports Club of India on the eastern footpath of the road, a taxi came from the opposite direction and stopped by their side 3 of the occupants of the taxi got down and 1 remained inside. These 3 persons at point of knife robbed these two persons of their wrist watches and ran away in the taxi. According to the prosecution, the 4 persons who were the occupants of the said taxi, arc the present appellants and original accused No. 4 Munsharif @ Mushrif Jamin Shaikh who has been similarly convicted and sentenced but has not filed any appeal. (ii) The second incident took place at about 1.45 a.m. during the same night. At that time Rajmanikam Karpa Devendra (P.W. 2) was walking on the eastern footpath on the same lala lajpath Rai Road. As he was near the L.L. Rai College, a taxi came and halted near him 3 persons got down from that taxi. Two of them were having button operated knives in their hands and at the point of knife, they robbed his wrist watch. According to the prosecution, these 3 culprits were accused Nos. 1, 2 and Original accused No. 4. (iii) The victims of the first robbery i.e. P.W. 1 and P.W. 4 immediately reported the incident to the police constable on duty at Haji Ali Circle which was at a short distance away from the place of occurrence. According to the prosecution, these 3 culprits were accused Nos. 1, 2 and Original accused No. 4. (iii) The victims of the first robbery i.e. P.W. 1 and P.W. 4 immediately reported the incident to the police constable on duty at Haji Ali Circle which was at a short distance away from the place of occurrence. The police Constable Gaikwad took them to Tardeo Police Station and Produced them before S.I. Naik (P.W. l1). The complaint was recorded as first information report and offence was registered under C.R. No. 292 of 1988 under section 397 read with section 34 I.P.C. The second incident was not reported by the complainant at the police station. During the course of investigation, on the basis of the complaint lodged by the victims of the first incident, P.W. 2 was called to L.T. Marg Police Station on 1.9.1988 and his statement was recorded. (iv) The accused persons were arrested on 18.8.1988. In pursuance of a voluntary statement made by accused No. 1 vide panchanama (Exh. 17-A) and evidence of panch witness Vishwanath Pange (P.W. 5) and further similar statements made by accused No. 1 Vide panchanama (Exh. 15-A) and panchanama (Exh. 21) and evidence given in respect there of by panch witnesses Ganpat Patil (P.W. 6) and Pravez Shaikh (P.W. 7), 2 wrist watches, a gold chain, three knives and a toy revolver were recovered and seized. It was revealed during the course of investigation that the watches and the gold chain had been pledged by accused NO. 1 with money lenders Nami Chand Jain (P.W. 9) and Lakshsing Rajput (P.W. 10) against money and were recoverd from them. (v) all the accused identified by the three victims viz., Harish (P.W. 1), Vasant (P.W. 4) and Rajmanikam (P.W. 2) at an identification parade held on 9.9.1988 at Lokmanya Tilak Marg Police Station through Special Executive Magistrate Dilip Naik, since deceased. As he was not available for giving evidence, the panchanama of the parade had been proved by panch witness Damodar (P.W. 8). (vi) After completing the investigation, charge-sheet was submitted against the four accused persons and in due course they were committed to the Court of Session, Greater Bombay, to stand their trial and were tried. 7. Charge was framed for offences under section 392 read with section 34 I.P.C. and section 392 read with section 397 I.P.C. as indicated earlier. (vi) After completing the investigation, charge-sheet was submitted against the four accused persons and in due course they were committed to the Court of Session, Greater Bombay, to stand their trial and were tried. 7. Charge was framed for offences under section 392 read with section 34 I.P.C. and section 392 read with section 397 I.P.C. as indicated earlier. All the accused pleaded not guilty to the charge. 8. The direct evidence adduced by the prosecution in respect of the incidents of robbery consisted of the testimony of the 3 victims viz., Harish (P.W. 1), Rajmanikam (P.W. 2) and Vasam (P.W. 4). The other evidence adduced by the prosecution consisted of evidence relating to the identification parade viz., the memorandum of identification parade and deposition and panch witness Damodar (P.W. 8), the panchnama of the place of occurrence (Exh. 13) proved by Vishnu (P.W. 3), the evidence relating to various recoveries of the stolen articles and knives at the instance of accused No. 1 proved by the evidence of panch witness Vishwanath (P.W. 5), Ganpat (P.W. 6) and Parvez (P.W. 7) and the evidence of the two money lenders Nami Chand (P.W. 9) and Lakshsing (P.W. 10). Lastly, the evidence consisted of the testimony of the Investigating Officers P.S.I. Naik (P.W. 11) and S.I. Salvi (P.W. 12). 9. According to the accused No. 1, he was falsely implicated in the case. According to accused No. 2 also, he was falsely implicated in the case and further according to him, he was waiting for a bus opposite G.T. Hospital and being a mechanic, he was carrying with him spanners, player and one screw driver, but a police constable, suspecting him to have committed thefts of car parts took him to the police station and put him up in the lock up although he was not at all concerned with the offence of robbery. According to accused No. 3, he was a cook working at A-1 Restaurant at Grant Road and while he was standing for a bus at V.T., a plain clothed police constable arrested him without assigning any reason and he was thereafter falsely implicated in this case although he was innocent. 10. According to accused No. 3, he was a cook working at A-1 Restaurant at Grant Road and while he was standing for a bus at V.T., a plain clothed police constable arrested him without assigning any reason and he was thereafter falsely implicated in this case although he was innocent. 10. Since there is no appeal preferred by original accused No. 4, as we propose to deal with his sentence at the end of the judgment, we may note his explanation as was given by him in his statement under section 313 of the Criminal Procedure Code. According to him, he was working as a cook at Din Mohamadi Hotel, Kamathipura, and while he had gone to Girgaon Chowpaty for a walk at about 4 p.m., one constable had arrested him without assigning any reason and thereafter he was falsely implicated in the instant case although he was innocent. 11. The prosecution witnesses were cross-examined at length by the learned Advocates appearing for the respective accused. Every part of the evidence was severally attacked. It was contended that Panchanama of recoveries were bogus, that no identification parade was actually held but a pretence was made to show that such a parade was held, that the purported identification of the accused by the witnesses was extremely doubtful particularly when there was no consistency in their statements relating to the height, complexion and appearance of the respective accused, that even the evidence of the Investigating Officers was concocted, that Nami Chand (P.W. 9) the shop keeper, from whom recovery of stolen articles was purportedly made, was tutored that there was no evidence adduced to show that there was sufficient light in which, the victims could have noticed the features and other descriptions of the culprits who had committed the robbery and that the evidence adduced by the prosecution did not establish that any of the accused persons had actually used knife in order to extort the wrist watches from the victims as alleged by the prosecution. It was contended before the trial Court that the whole case was built up after some person had been arrested who was the taxi driver of a taxi and after it was realised that some other persons were in fact concerned with the commission of offence but taking advantage of this circumstance, the appellants were falsely implicated in the instant case. It was also submitted that there were differences in the code alphabets of the taxi number occurring in the evidence, inasmuch as at some places the same was shown as MMO 2754 and at some other places the same was shown as MMT 2754. It was also contended that evidence of Nami Chand shows that the person who had pledged some articles with him was a person with totally different name than of the accused No. I and, therefore, the recoveries of articles alleged by make at the instance of accused No. 1 are bogus. 12. After a very careful analysis of the evidence and taking into consideration the submissions made on behalf of the accused persons, the learned trial judge, however, held the appellants guilty of committed the respective offences and consequently has sentenced them to the various terms of imprisonment together with a sentence of fine as already mentioned. 13. The learned Advocates Mr. Arolkar and Mr. Shastri reiterated contentions that were advanced before the trial Court for criticising the evidence adduced by the prosecution and to contend that case of the prosecution was entirely false and in any event the appellants, i.e. accused Nos. 1,2 and 3 were falsely implicated. Alternatively, they submitted that the conviction of the appellants under section 397 I.P.C. is not correct and that offence cannot be said to have been proved beyond reasonable doubt from the evidence of the prosecution. They urged that all the appellants deserve to be acquitted and alternatively, their conviction under Section 397 I.P.C. deserves to be set aside. It must be made clear that the learned Advocates did not concede that the appellants had committed the offence under section 392 I.P.C. but their submission has been only in the alternative. 14. It is not possible to accept the submission of the learned Advocates that the conviction of the appellants for offence under section 392 read with section 34 I.P.C. is bad. We, however, find substance in the alternate submission in respect of conviction under section 397 I.P.C. We have gone through the evidence and noted criticism levelled against it by the learned Advocates. Harish (P.W. 1) has deposed that he was working as a waiter at National Sports Club of India and he resides at Worli, i.e. in the same area. We, however, find substance in the alternate submission in respect of conviction under section 397 I.P.C. We have gone through the evidence and noted criticism levelled against it by the learned Advocates. Harish (P.W. 1) has deposed that he was working as a waiter at National Sports Club of India and he resides at Worli, i.e. in the same area. According to him, on the day of incident, he had gone along with his friend Vasant Gaikwad (P.W. 4) to Bombay Central S.T. Bus Stand to see off a friend and they were returning to their residences by foot and as they were near the entrance gate of N.S.C.I. at about 1.20 a.m., a taxi came from opposite direction and stopped near them. Three persons get down there-from. They were all armed with knives. Two out of them pointed their knives at the neck of Vasant and also at his abdomen and removed the wrist watch which Vasant was wearing. Instantly thereafter, one out of the three culprits came towards him and touched the knife at his abdomen and under threat demanded his wrist watch, which he removed and gave to him. According to him, thereafter the culprits sat in the taxi and the taxi sped away. He and his friend ran after the taxi but it had gone away. On the same night, his statement was recorded at Tardeo Police Station. Statement of Vasant was also recorded. This part of the incident has also been deposed to by Vasant (P.W. 4) who was at the material time working in Bombay. According to him, Harish (P.W. 1) was his friend and both of them had gone to the bus stand to leave their common friend. When they were walking by the L.L. Rai Road on their way to home and when they were near the entrance gate of N.S.C.I., a taxi came and halted near them from which 3 persons got down and at point of knife, both of them were relieved of their wrist watches. Therefore, according to him, the 3 culprits sat in the taxi and the taxi sped away. 15. From the cross-examination of these two witnesses, it is not possible to gather any reason for these witnesses to have falsely narrated the incident. 16. Therefore, according to him, the 3 culprits sat in the taxi and the taxi sped away. 15. From the cross-examination of these two witnesses, it is not possible to gather any reason for these witnesses to have falsely narrated the incident. 16. Both these witnesses further deposed that at the identification parade held on 9.9.1988, they had committed the act of robbery at the point of knife and the one who had remained in the taxi. The cross-examination of P.W. 1 shows that he was not able to say clearly the features of the person who was stated in the taxi. Vasant (P.W. 4) also deposed to the same effect. 17. P.W. 2 Rajmanikam was residing at the Zopadpatti close to the N.S.C.I. He was working as a driver. He was returning home after completing his duty. As he was near L.L. Rai College, also a short distance away from N.S.C.I., along side the same road, a taxi halted near him. Three persons got down there-from. Two of them were having button operated knives in their hands. One person touched the knife at his abdomen and the other touched the knife at his waist. The third person snatched away his wrist watch. Thereafter the culprits sat in the taxi and the taxi sped away. He also deposed that at the identification parade held on 9.9.1988 he had identified the accused persons. According to him, however, it was accused no. 2 who had touched the knife on his abdomen and was so identified by him. The other person who had touched the knife at him, was original accused No. 4. Although he stated that he had not lodged any complaint with the police despite the fact that he was a social worker. He stated that he was called at the L.T. Marg Police Station on 1.9.1988 when he narrated the incident to the police and that information was recorded. 18. All those witnesses have deposed that they had pointed out the respective accused at the identification parade and thus identified them as the participants in the robbery. He stated that he was called at the L.T. Marg Police Station on 1.9.1988 when he narrated the incident to the police and that information was recorded. 18. All those witnesses have deposed that they had pointed out the respective accused at the identification parade and thus identified them as the participants in the robbery. Since the evidence of these 3 witnesses shows that a gang of four persons using a taxi had robbed the three persons in the vicinity of N.S.C.I. on Lala Lajpat Rai Road, Worli, within a span of about 30 to 40 minutes and since they identified all the accused in the Court, there can hardly be any doubt about the complicity of all the four persons in the commission of the offence of robbery. The manner in which they had come together and had ran away in the same taxi and the manner in which the witnesses were robbed of their watches is sufficient to establish that all the accused had shared a common intention to commit the offence of robbery. The time selected by them was odd hour of the night and there was therefore possibility of the victims being found in isolated places. As has been found well lighted and that was also established from the recitals in the panchnama (Exh. 13) and evidence of panch witness Vishnu Gamare (P.W. 3). That goes to show that the witnesses were able to notice the features of the culprits who had actually robbed them. 19. Proceedings of the identification parade have been satisfactorily proved from the evidence of the memorandum panchnama and the evidence of panch witness Damodar (P.W. 8). Unfortunately for the prosecution, the S.E.I. who hold the parade, was no longer available for giving evidence as he had in the meanwhile died. In the circumstances, we find no reason to hold that the evidence relating to the parade as has been adduced, could not be relied upon by the prosecution. Although it has been sought to be argued on behalf of the accused that the witnesses could not have remembered the features of the culprits assuming that they were robbed as deposed to by them and they must have been frightened when they were surrendered by persons holding knives and the whole incident may not have lasted for more than few seconds and thus no reliance can be placed on the identification parade. We are not impressed by this argument in view of the evidence of the three witnesses and the panch witness of the identification parade, which clearly goes to show that the three witnesses identified the culprits in the identification parade and all the witnesses were firm in the identification of the culprits. Even if they were not able to correctly describe the roles played by each of the accused, the participation of the accused persons in the commission of the offence thus cannot be doubted. The witnesses had also identified the accused persons in the Court during the trial. 20. There is also evidence of recovery of articles. The wrist watches recovered have been identified by the witnesses. They had described the details about their wrist watches and as they were accustomed to use those wrist watches, there was nothing unnatural in their having been able to identify their .own wrist watches. The evidence relating to the recovery of the articles has been provided by the panch witnesses of the recovery viz., P.W. 3, P.W. 5, P.W. 6, P.W. 7 and P.W. 8 and the Investigating Officers. That is corroborated and Laksing (P.W. 10). There is no substance in the argument that according to Nami Chand, the person who had pledged the articles, had given some different name than the name of accused No. 1. One can very easily visualise that accused No. 1 could have posed himself by another name but the fact that the recoveries were made at his instance and since that is proved from the evidence of Nami Chand, there remains no doubt that the recovery was made at the instance of accused No. 1 and by whatever name he had gone to Nami Chand, it was he who was found concerned with the stolen articles. It is unnecessary to make a detailed survey of the evidence relating to recoveries contained in the various panchnama as we find nothing in the evidence of the panch witnesses requiring us to discard that evidence. The watches all the knives have been identified by the witnesses and to the extent of identification relating to the wrist watches, no doubt can be entertained. 21. Since the evidence establishes that all the accused had come together and had participated in the commission of the offences and had left together, section 34 I.P.C. clearly applies to them. 22. The watches all the knives have been identified by the witnesses and to the extent of identification relating to the wrist watches, no doubt can be entertained. 21. Since the evidence establishes that all the accused had come together and had participated in the commission of the offences and had left together, section 34 I.P.C. clearly applies to them. 22. Thus, from the above discussed evidence, we are satisfied that the learned trial Judge has rightly convicted the appellants for committing the offence under section 392 read with section 34 I.P.C. in respect of robbery of the three watches from the three persons viz., P.W. 1, P.W. 4 and P.W. 2. We therefore confirm the conviction of the appellants for that offence. 23. In so far as the conviction of the appellants for the offence under section 397 I.P.C. is concerned, we find that the evidence of the mate trial witnesses is not sufficient to establish that they were put under the fear by show of knife before they were robbed of their articles. An that P. W. 1 Harish has deposed is that one out of the 3 persons had pointed a knife at Vasant and one had pointed knife at himself. Although he has purported to ascribe the use of knife by a particular accused and had also described that the knife was about to in length, it is difficult to gather from his evidence that the knife was used in the manner he has deposed to, inasmuch as, the two witnesses sick successions and out of the who had used the knife against P.W. 4 is not clear. Moreover, according to the testimony of Harish, one of the culprits was all the time sitting in the taxi. Hence, while referring to the person who had pointed the knife at him, he was not certain as to whether on the second occasion the person in the taxi had come out or not. Same is the position with regard to the evidence of the other two witnesses viz., P.W. 2 and P.W. 4. More possession of the knife pr seeing it in the hands of some of the complaint would not be sufficient to attract the provisions of section 397 I.P.C. that is required to be proved is that the offender must have used a deadly weapon. More possession of the knife pr seeing it in the hands of some of the complaint would not be sufficient to attract the provisions of section 397 I.P.C. that is required to be proved is that the offender must have used a deadly weapon. The word 'used' may also include showing of the blade of the knife in a menacing may so as to give threat or cause fear in the mind of the victim. Although the victims purported to say that the knives were touched at two places of their body, one on their front and one in their back, having regard to the nature of the articles stolen, they being merely wrist watches, it does not appear probable that so much force was likely to have been used by the offenders as had caused fear of danger. We are therefore not certain as to whether a knife could be said to have been used even in the broader sense for the purpose of section 397 I.P.C. in the commission of the said offence Same is the position with regard to the alleged used of knife during the robbery of wrist watch from P.W. 4. Under the circumstances, we are inclined to give benefit of doubt to this extent to the appellants. We are therefore inclined to set aside their conviction for the aggravated offence under section 392 read with section 397 I.P.C. 24. From the judgment of the learned trial Judge, we find that accused No. 1 was in custody since the date of his arrest which was on 18.8.1988 till the date of his conviction which was recorded on 31.3.1992 and he has continued to remain in custody since then till today as bail was not granted to him. That would work out to more than 4 years and 4 months. The sentence awarded by the learned trial Judge being 5 years, we think that the period undergone so far by the said accused should be regarded as sufficient deterrent to him and adequate punishment. We are therefore inclined to reduce the sentence to the period already 25. In so far as accused No. 2 is concerned, he was in custody only for a period of 6 months prior to the date of his conviction but appears to be in custody since the date of his conviction. We are therefore inclined to reduce the sentence to the period already 25. In so far as accused No. 2 is concerned, he was in custody only for a period of 6 months prior to the date of his conviction but appears to be in custody since the date of his conviction. The total period works out to slightly more than 2 years 3 months. Having regard to the evidence that he was the person all the time sitting in the taxi and his implication was merely by reason of section 34 I.P.C. we think that the period of custody already undergone should be sufficient deterrent to him and we are inclined to reduce his sentence to the period already undergone by him till now. 26. In so far as ace used No. 3 is concerned, he was in custody for a period of 2½ years prior to the date of conviction and has been in custody since the date of conviction till now. His period also works out to the same as in the case of accused No. 1 and we, therefore, regard the period already undergone by him in custody as sufficient punishment and are inclined to reduce his sentence to the period already undergone by him. 27. In the result, all the three appeals are partly allowed. The conviction of the appellants (original accused Nos. 1,2 and 3) in each of the appeals for offence under section 392 read with section 34 I.P.C. on the first count is confirmed and maintained bet the sentence of R.I. for 5 years and a fine of Rs. 200/- in default further R.I. for 2 months awarded to each of the appellants for that offence by the trial Court is reduced to the period already undergone by each of the appellants. 28. The conviction and sentence for the offence under section 392 read with section 397 I.P.C. of the appellants in Criminal Appeal No. 331 of 1992 and Criminal Appeal No. 504 of 1992 (i.e. of original accused Nos. 1 and 3) is set aside and the said appellants are acquitted of the said offence. 29. The conviction of the appellants for offence under section 392 read with section 34 I.P.C. in Criminal Appeal No. 504 of 1992 and Criminal Appeal No. 334 of 1992 (i.e. of original accused Nos. 1 and 2) on the second count is confirmed. 1 and 3) is set aside and the said appellants are acquitted of the said offence. 29. The conviction of the appellants for offence under section 392 read with section 34 I.P.C. in Criminal Appeal No. 504 of 1992 and Criminal Appeal No. 334 of 1992 (i.e. of original accused Nos. 1 and 2) on the second count is confirmed. The sentence awarded for that offence of R.I. for 5 years and a fine of Rs. 100/- in default further R.I. for 1 month is, however, reduced to the period already undergone by each of the appellants. The sentence to be concurrent with the sentence on the first count. 30. The conviction of appellant in Criminal Appeal No. 334 of 1992 (i.e. original accused No. 2) for the offence under section 392 read with section 397 I.P.C. and the sentence of R.I. for 71/2 years imposed for that offence by the trial Court is set aside and the appellant is acquitted of the said offence. 31. The appellants be given benefit of set off under section 428 of the Criminal Procedure Code. The appellants be released forthwith unless required in connection with any other case. 32. As far as accused No. 4 Munsharif @ Mushrif Jamin Shaikh is concerned, having regard to the evidence, we are not satisfied that his conviction under section 397 I.P.C. can be sustained. Although he has not preferred any appeal, we set aside his conviction and sentence for that offence on both the counts as awarded by the learned trial judge and against him of the same. His conviction and sentence for offence under section 392 read with section 34 I.P.C. is, however, confirmed and maintained. Appeal partly allowed.