Judgment : This Crl.R.C.No.763 of 1995 is directed against the judgment dated 9. 1995 in C.A.No.9 of 1995, on the file of the District and Sessions Judge, Chengalpet, confirming the conviction and sentence imposed in S.C.No.62 of 1993 on the file of Assistant Sessions Judge, Tiruvallur, convicting the petitioner under Sec.395 read with Sec.397, I.P.C., and sentencing him to undergo R.I. for seven years. 2. Another connected revision in Crl.R.C. No.762 of 1995 is directed against the judgment dated 9. 1995 in C.A.No.10 of 1995, on the file of the District and Sessions Judge, Chengalpet, confirming the conviction and sentence imposed upon the petitioner in S.C.No.64 of 1993, on the file of Assistant Sessions Judge, Tiruvallur, convicting the petitioner under Sec.395 read with Sec.397, I.P.C., and sentencing him to undergo R.I. for seven years. 3. Since both the revisions are filed by the same petitioner and the witnesses relating to the arrest, recovery of material objects and other particulars are common in both the cases, it is better to render a common order in both these revisions. .4. The facts in S.C.No.62 of 1993, on the file of Assistant Sessions Judge, Tiruvallur, against which the revision in Crl.R.C.No.763 of 1995 has been filed before this Court, are as follows: .In this case, on behalf of the prosecution P.Ws. 1 to 14 were examined, Exs.P-1 to P-9 were filed and M.Os.1 and 2 were marked. P.W.1, K.Kumarasamy is working as a Professor in Government College at Ponneri. He along with his family, consisting of his wife P.W.2, Kalavathi, their daughter P.W.3 Divya, were residing in Plot No. 181, Balaji Nagar, Ponneri. 5. On 111. 1990, at about 12.30 midnight, P.W.1, Kumarasamy was watching the Television programme in his house. P.W.2, Kalavathi and P.W.3 Divya were sleeping inside the room. Suddenly, P.W. 1, heard the barking sound of a dog; While, P.W. 1, was seeing through the lence fitted in the door, he found four or five persons trying to enter into the house. P.W. 1, went inside the bed room and shouted “thief thief..” P.Ws.2 and 3 woke up. Three persons, including the petitioner threw the stones inside the room through the windows. They broke-open the lock in the door and trespassed inside. One of them, removed his gold ring, weighing half sovereign. P.W. 1, went inside the bed room and shouted “thief thief..” P.Ws.2 and 3 woke up. Three persons, including the petitioner threw the stones inside the room through the windows. They broke-open the lock in the door and trespassed inside. One of them, removed his gold ring, weighing half sovereign. Then, they threatened P.W. 1, at the point of knife and took him to the kitchen room, where he was tied up with rope. A few minutes later, his daughter P.W.3, Divya was also brought inside the Kitchen and tied up with rope. Then, they snatched ‘thali’ from P.W.2, Kalavathi, the wife of P.W. 1. They also took away the Kammal from P.Ws.2 and 3 and cash of Rs.5,000 from almarah and other places and silver articles. Then at 1 O’clock, P.W.2, Kalavathi was also brought inside the Kitchen and tied up with rope. 6. All these persons were found wearing lungi alone, and covering their faces with kerchief. They were/ aged about 20 to 30 years. They also threatened the witnesses, that if they shouted, they would throw the bomb inside the house and demolish the entire building. Then, they went away, after putting the lock from inside. After they went out, the witnesses shouted. At about 1.45 A.M., the college students, staying in the private hostel, situate next to the house of P.W. 1, came and relieved them. 7. Next day early morning i.e. on 111. 1990, P.W.1, Prof.Kumarasamy went to the Ponneri Police Station and gave Ex.P-1 complaint to P.W. 12, Ramachandran, the Sub-Inspector of Police. The same is registered in Cr.No.474 of 1990, under Sec.395, I.P.C. Ex.P.6 is the printed F.I.R. P.W. 12, despatched the documents to the court as well as to the higher officials. .8. P.W.13, Gnanamani, the Inspector of Police received the message at 7.30 A.M., on 111. 1990 and straight away went to the spot. He prepared observation mahazar Ex.P-2 and the rough sketch Ex.P-7, in the presence of P.W.6, Velan and P.W.7, Velu Natarajan. P.W.13, found broken class pieces and the stones, thrown by the accused inside the house of P.W. 1. He, as well, examined P.W. 1, Kumarasamy, P.W.2, Kalavathi and P.W.3, Divya. 9. P.W.4, Arumugham, stated to the police that on the date of occurrence at 1.00 A.M, he heard the sound of throwing stones. He is staying in the same area. 10. He, as well, examined P.W. 1, Kumarasamy, P.W.2, Kalavathi and P.W.3, Divya. 9. P.W.4, Arumugham, stated to the police that on the date of occurrence at 1.00 A.M, he heard the sound of throwing stones. He is staying in the same area. 10. In September, 1991, P.W. 14, Deenadayalan, the successor of P.W.13, joined at Ponneri Police Station and took up further investigation of the case in Cr.No. 474 of 1990. On 10. 1991, P.W. 14, the Inspector of Police along with his party, while went to the Ponneri railway station for routine checkup, at about 4.00 A.M., he found the petitioner/accused Ravana Babu, standing in front of the railway station alone with a camera, in a suspicious circumstances. While he was interrogated by P.W. 14, he came forward with voluntary confession in Telugu, which was translated into Tamil in the presence of P.W.8, Ekambaram and P.W.9, Venkateswaralu, stating, that he committed dacoity along with others in two houses at Ponneri. 11. The admissible portion of such voluntary confession given by the accused/petitioner is Ex.P-8. He also stated in the confession, that the gold jewels and other items taken away from the two houses at Ponner were sold by him along with one Sivayya, to P.W. 11, Payaz, a jeweller, who is owning a jewellery shop at Nellur, Andhra Pradesh. He also stated that if he is taken to Nellur, he would point out the person, to whom the jewels were sold. This was at 6.30 A.M. on 10. 1991. 12. Then, along with the witnesses, P.W. 14, Inspector of Police was escorted by the petitioner/accused to Nellur, where he pointed out the jewellery shop of P.W. 11, Payaz. He also pointed out, P.W. 11, Payaz, as the person to whom, the stolen properties were sold. P.W. 11, on his being pointed out by the petitioner, admitted having purchased the stolen properties and handed over the M.O.1, 30 grams of gold in got and M.O.2, 150 grams of silver ingot. The same were recovered under Ex.P.9, mahazar attested by P.W.8 and P.W.9. P.W. 14, Inspector of Police also recorded statement from P.W. 11. .13. On 30.10.1991, P.W. 14, sent a requisition to the Chief Judicial Magistrate, Chengalpattu, for conducting identification parade. P.W. 10, N.Rajagopalan, Judicial Magistrate No.2, Ponneri, on receipt of letter form the Chief Judicial Magistrate, conducted identification parade on 111. 1991. P.W. 14, Inspector of Police also recorded statement from P.W. 11. .13. On 30.10.1991, P.W. 14, sent a requisition to the Chief Judicial Magistrate, Chengalpattu, for conducting identification parade. P.W. 10, N.Rajagopalan, Judicial Magistrate No.2, Ponneri, on receipt of letter form the Chief Judicial Magistrate, conducted identification parade on 111. 1991. P.W.1, Prof.Kumaraswamy correctly identified the petitioner/accused on all the three rounds. One Balaiah (not examined) also identified the petitioner/accused on two rounds. This identification parade was conducted in between 2.15 P.M. and 5.30 P.M. Ex.P-5, is the report of identification parade given by P.W. 10, Judicial Magistrate. Since the other accused were absconding, after finishing investigation, P.W. 14, filed charge sheet against the petitioner/accused for the offence under Secs.395 and 397, I.P.C. .14. The facts relating to S.C.No.64 of 1993, on the file of Assistant Sessions Judge, Tiruvallur, against which the revision in Crl.R.C. No.762 of 1995, has been filed before this Court, are as follows: .In this case, on the side of prosecution P.Ws. 1 to 14 were examined, Exs.P-1 to P-6 filed and M.O.I marked. P.W.1, Ramu is working as a Conductor in Pattukottai Aiagiri Transport Corporation and a resident of Anna Nagar at Ponneri. P.W.2, Prema is his wife, P.W.3 Sumathi is the younger sister of P.W.2, Prema. 15. On 14. 1991 night, P.W.1, was sleeping outside his house in a cot, while P.W.2, Prema and P.W.3, Sumathi and the two children of P.W.1, were sleeping inside the house. It was at about 2.00 A.M. midnight, on hearing a barking sound of a dog, P.W.1I, Ramu woke up. Four or five persons, inclusive of the petitioner/accused came running towards P. W. 1. One of the persons snatched the watch worn by P.W. 1, Ramu. All these persons armed with knife, stones etc. threatened P.W. 1, Ramu not to shout. Then, the accused by means of the stone, broke-open the door and entered inside the house. P.W. 1 Ramu was also taken inside. P.W.2, Prema, the wife of P.W. 1, and others got up from the bed and came towards the entrance. Then, the accused snatched the ‘thali’ from P.W.2. P.W.2 at mat time requested the accused, not to cause any harm to any person and said that she would herself remove the other jewels and hand it over to them. Even then, they snatched the other jewels from P.Ws.2 and P.W.3. Then, the accused snatched the ‘thali’ from P.W.2. P.W.2 at mat time requested the accused, not to cause any harm to any person and said that she would herself remove the other jewels and hand it over to them. Even then, they snatched the other jewels from P.Ws.2 and P.W.3. They also took another thali from almarah. Thereafter they put P.Ws.2 and 3 and two children of P.W. 1, in One room and locked the same from outside. .16. The next portion was occupied by one Vijayalakshmi, P.W.4, P.W.5, Thulasingam, had gone for night duty. P.W.4, the wife of P.W.5, alone was available in the house. The accused persons directly came to this portion. At that time, they were armed with knife, stick and bricks. On entering inside the house, they demanded P.W.4, to hand over the alamerah key. She immediately handed over the same. Then, almarah was opened and they took away the cash of Rs.400 and went away after locking the door from outside. 17. Thereafter, all the witnesses shouted. P.W.6, Muruganandham, who is a local resident of the same area, saw the accused persons throwing stones. He put a electric light. The accused persons threatened him to put out the light. After the accused persons went away, P.W.6, Muruganandham, took the help of others, went to the house of P.W. 1, opened the door and relieved all the witnesses. 18. On 14. 1991, early morning P.W.1, Ramu went to Ponneri Police Station and gave Ex.P-1 complaint to P.W. 12, Ramachandran, Sub-Inspector of Police. This was registered in Cr.No. 96 of 1991, for the offence under Sec. 392, I.P.C. Ex.P-4 is the printed F.I.R. P.W. 12, sent the document to the court as well as to the higher Officials. 19. P.W. 13, Gnanamani, the Inspector of Police, on receipt of the message, straight away went to the spot at 8.00 A.M. He prepared observation mahazar and rough Sketch Ex.P-5, in the presence of P.W.8, Devaraj. They found the locks of the doors broken and stones, in the house of P.W. 1. P.W. 13, examined P.Ws. 1 to 6 and recorded their statements. 20. In September 1991, P.W. 14, another Inspector of Police, Deenadayalan, took up investigation. On 10. They found the locks of the doors broken and stones, in the house of P.W. 1. P.W. 13, examined P.Ws. 1 to 6 and recorded their statements. 20. In September 1991, P.W. 14, another Inspector of Police, Deenadayalan, took up investigation. On 10. 1991, early morning at about 4.00 A.M., as set out in paragraph 10 of this order, P.W. 14 interrogated the petitioner/accused, who gave a voluntary confession, the admissible portion of such confession being Ex.P-2, and took P.W.14 and other to Nellur and pointed out P.W. 11, Payaz, as the person to whom the stolen properties were sold. .21. P.W. 11, Payaz, on his being pointed out by the petitioner, admitted having purchased the stolen properties and handed over M.O-1-18 grams of gold ingot. The same was recovered under Ex.P-6 mahazar, attested by P.W.9, Venkateswaralu and another. P.W. 14, Inspector of Police also recorded statement from P.W. 11. Identification parade was conducted by P.W. 10, Rajagopalan, Judicial Magistrate No.2, Ponneri, but P.W. 1, Ramu, and P.W.2, Prema did not identify the petitioner/accused .Ex.P-3 is the report of identification parade given by P.W. 10, Judicial Magistrate. Since the other accused were absconding, after finishing the investigation, P.W.14, filed the charge sheet on 1. 1992, against the petitioner/accused for the offence under Secs.395 and 397, I.P.C. 22. In both the cases, after the evidence on the side of prosecution was over, when the petitioner/accused was questioned under Sec.313, Cr.P.C, to explain the incriminating circumstances brought on record in evidence against the petitioner, he denied his complicity in the crime and further said that a false case was foisted against him. 23. On conclusion of trial, the trial court found the petitioner guilty for the offence under Sec.395 read with Sec.397, I.P.C, in both the cases and dealt with him as referred to earlier. The appeals filed by the petitioner in C.A.Nos.9 and 10 of 1995, on the file of the District and Sessions Judge, Chengalpattu were dismissed, confirming the conviction and sentence imposed by the trial court. Challenging these judgments of the Sessions Court in a both the appeals, the petitioner filed these two revisions. 24. Let me take up Crl.R.O.No.763 of 1995 first, since it relates to the earlier occurrence, which took place on 111. 1990. 25. Challenging these judgments of the Sessions Court in a both the appeals, the petitioner filed these two revisions. 24. Let me take up Crl.R.O.No.763 of 1995 first, since it relates to the earlier occurrence, which took place on 111. 1990. 25. Mr.Sankarasubbu, learned counsel appearing on behalf of the petitioner, while taking me through the entire evidence and the Judgments of the trial court in S.C.No.62 of 1993 and the lower appellate court in C.A.No.9 of 1995, has submitted various points, which could be summarised as follows: .(i) The trial court and the lower appellate court have not properly appreciated the evidence. .(ii) The occurrence tookplace on 111. 1990. But the identification parade was conducted on 111. 1991. As such, there is a considerable delay in conducting the identification parade. (iii) P.W. 1, Prof.Kumarasamy has deposed before court, that he was able to identify the petitioner/accused in the identification parade, since he was able to see his face at the time of occurrence, when the kerchief, which covered his face, slightly got opened which he has not stated in the F.I.R., and in the statement given before the police. .(iv) Even prior to the identification parade, the petitioner/accused was shown to P.W.1, Prof.Kumarasamy, at the police station. So, the identification parade has no significance. .(v) Under Sec.397, I.P.C., the prosecution has to prove that knife was used by the accused, at the time of commission of the offence. In this case, there is no evidence to that effect As such, the petitioner could not be convicted for the offence under Sec.397, I.P.C. (vi) Sec.395 read with Sec.397, I.P.C, requires the involvement of five persons or more. But, in this case, only one person was facing the trial, and as such the petitioner could not be convicted for the offence under Sec.395, I.P.C, even if conceded, for the shake of argument, that the offence under Sec.397, I.P.C. is made out. 26. Mr.S.Manimaran, learned Government Advocate, appearing for the State, repelled the submissions made on behalf of the petitioner/accused and pointed out the relevant portions of the evidence and judgments of both the courts below and contended that the verdict given by the courts below is correct and need not be interfered. 27. Regarding the occurrence, there is a clear evidence of P.W.1, Prof.Kumarasamy. 27. Regarding the occurrence, there is a clear evidence of P.W.1, Prof.Kumarasamy. While P.W.1, watching the T.V., the accused persons trespassed into the house and threatened him and at the point of knife removed from him a gold ring and after he was tied up in the kitchen, they snatched ‘thali’ from P.W.2, Kalavathi and Kammal from P.Ws.2 and 3 and took away the cash of Rs.5,000 and silver articles. After completion of the crime, they went away, locking the room from outside. On shouting, the neighbours came and rescued them. His evidence to this effected has been corroborated by P.W.2 and P.W.3. Immediately, he gave Ex.P-1 complaint to P.W.1 2, the Sub-Inspector of Police, which was registered in Cr.No. 474 of 1990, for the offence under Sec.395, I.P.C. 28. P.W. 13, on receipt of copy F.I.R., went to the spot and prepared observation mahazar Ex.P-2 and rough sketch Ex.P-7, in which the details of the houses of P.W. 1, and other neighbours, who came and rescued the witnesses are mentioned. The pellmell condition of the house and the stones thrown by the accused persons inside the house and the broken locks are also mentioned in Ex.P-2 observation mahazar. This would clearly prove that the occurrence had taken place on the relevant date and at the relevant time. 29. The next piece of evidence is the arrest and recovery, as spoken to by P.W. 14, Inspector of Police, and P.Ws.8 and 9, the mahazar witnesses, and P.W. 11, Payaz, from whom the gold and silver ingots were recovered and the admissible portion of the confession given by the petitioner, Ex.P-8. The arrest was made by P.W. 14, Inspector of Police, on 10. 1991 at 4.00 A.M., when the petitioner was standing near the Railway station/having entertained a suspicion on him. Then he gave a voluntary confession stating that he along with other committed dacoity in two houses at Ponneri and sold it to P.W. 11, Payaz at Nellur. In pursuance of the said confession, the petitioner took P.W. 14 and other witnesses, to Nellur and pointed out the shop of P.W. 11, who gave a statement that Ravana Babu, the petitioner sold the gold jewels and silver articles. He further stated that these jewels and articles. In pursuance of the said confession, the petitioner took P.W. 14 and other witnesses, to Nellur and pointed out the shop of P.W. 11, who gave a statement that Ravana Babu, the petitioner sold the gold jewels and silver articles. He further stated that these jewels and articles. He further stated that these jewels and articles were converted into ingots, M.Os.1 and 2, which were recovered by P.W. 14, under the mahazar Ex.P-9. This evidence is a very important piece of evidence, which clearly connects the petitioner in the commission of crime. 30. The next piece of evidence is the identification of the accused/petitioner by P.W.1, Prof.Kumarasamy at the identification parade as spoken to by P.W. 10, Judicial Magistrate, who conducted the same. As such, P.W.1 identified the petitioner/accused, both in the identification parade and in the court. This piece of evidence would also go to prove that the petitioner and the petitioner alone has committed this offence along with others. 31. These three sets of evidence have been clearly brought on record, through the tangible materials which have been correctly accepted by both the courts below. As such, the trial court in paragraph 21 of its Judgment and the lower appellate court in paragraphs 5 and 6 of its Judgment have elaborately considered these aspects and had given a clear verdict. 32. It has been contended by learned counsel for the petitioner, that there is considerable delay in conducting the identification parade. It is not correct. Of-course, the occurrence took place on 111. 1990 at 12.30 midnight. The petitioner/accused was arrested on 10. 1991. Thereafter, the investigation Officer made arrangement to conduct identification parade through the Judicial Magistrate. It is the evidence of P.W. 14, that he sent a requisition as early as on 30.10.1991 to the Chief Judicial Magistrate, Chengalpattu, who in turn, directed P.W. 10, the Judicial Magistrate No.2, Ponneri, to conduct identification parade. Naturally, there could be a procedural delay, for receipt of this requisition from the Inspector of Police, by Chief Judicial Magistrate, and the receipt of the order by P.W.10, J.M.No.2, Ponneri, form the Chief Judicial Magistrate and only thereafter P.W. 10, Judicial Magistrate would make arrangements for conducting identification parade, with the co-operation of the jail authorities and the Police Officers, who have to produce the witnesses. As such, the delay has been properly explained by P.W. 14, Inspector of Police, in conducting the identification parade on 111. 1991, Judicial Magistrate. 33. Coming to the next submission made by learned counsel for the petitioner, of-course P.W. 1 did not say in the F.I.R. But we have to see that the occurrence took place for about half an hour. According to P.W.1, the accused persons trespassed into the house at 12.30 midnight and went away only at 1.00 A.M. In the mean time, P.W. 1 was taken inside the Kitchen and tied up with rope. They snatched the jewels from P.W.2. They went near P.W. 3 and took some jewels from her. Thereafter, they entered into the room and took cash and silver articles in the almarah. So, this occurrence took place for a long time, so as to enable the witnesses to see some of the accused. It must be noted that P.W. 1 is a Professor, an educated man and he would definitely be able to remember the peculiar features of the accused. That was the reason, how he was able to identify the petitioner in the identification parade, that too, during the occurrence, the kerchief which covered the face of the petitioner was slightly got opened. Merely because, this has not been mentioned in the F.I.R., we cannot disbelieve the evidence of P.W. 1 who has no animosity whatever against the petitioner. 34. The evidence adduced by P.W.1, who withstood the lengthy cross examination, would reveal that he is a reliable witness, whose evidence could be believed, as has been done by both the courts below. Moreover, only during the cross examination, he gave explanation, which is as follows: The reason for not mentioning this in the F.I.R., given to the police is obvious, because he was not asked about it. When he was asked about it in the cross-examination, he has come out with the correct explanation, which could be accepted. Moreover, if the case of the prosecution is that the witnesses could not identify the accused/petitioner in the identification parade, due to the fact that the entire face of the accused were covered with Kerchief, then P.W. 14 would not have made arrangement for conducing identification parade. Further more, P.Ws.2 and 3 would say in the court, that they could not identify the petitioner/accused. Further more, P.Ws.2 and 3 would say in the court, that they could not identify the petitioner/accused. That was the reason, as to why, they did not participate in the identification parade. In this context, the evidence of P.W. 1, who would say assumes more significance. As such, this evidence, by way of explanation given in the Cross-examination, cannot at all be construed to be an improvement. 35. The next contention would be that P.W.1 has seen the accused/petitioner even at the police station prior to parade. Except the statement of the petitioner, before the Magistrate there is no other material to substantiate this statement. In fact, P.W. 1 specifically says" So, the identification of the petitioner/accused by RW.1 Prof.Kumarasamy, in the presence of P.W. 10. Magistrate, has got to be considered as a reliable and acceptable piece of evidence. 36. Learned counsel for the petitioner, contends that the offences under Sec.397, I.P.C., could not be made out because there is no evidence available, to show that the accused/petitioner had at any point of time, during the course of occurrence, used any weapon. This again lacks substance. P.W.1 would say in his chief examination. P.W.2, would also say P.W.3, would say that This would clearly show that knife has been used by the accused persons, during the course of occurrence, which would definitely attract Sec.397, I.P.C. As per Sec.397, I.P.C. if any deadly weapon is used for committing robbery or dacoity, the offence is made out. 37. Yet another contention is that, for attracting Sec.395, I.P.C., five or more persons are necessary, whereas in this case only one person has faced the trial. The reason for conducing trial only in respect of the petitioner alone is that the other accused persons were absconding. The evidence adduced by P.W.1 is that P.W.3. also would say that Even the F.I.R. given by P.W.1 in this case, was registered under Sec.395, I.P.C., by P.W.12, Sub-Inspector of Police, since according to P.W. 1, more than 5 persons were involved in the dacoity. The evidence adduced by P.W.1 is that P.W.3. also would say that Even the F.I.R. given by P.W.1 in this case, was registered under Sec.395, I.P.C., by P.W.12, Sub-Inspector of Police, since according to P.W. 1, more than 5 persons were involved in the dacoity. So, on the basis of these materials collected during the course of investigation, the charge also was framed against the petitioner, that he along with 5 others committed the offence under Sec.395 read with Sec.397, I.P.C. As such, evidence has been brought on record to show that more than five persons have participated in the crime of snatching ‘thali’ taking away the jewels and articles at the point of knife which would constitute an offence under Sec.395, I.P.C. Therefore, the conviction by the courts below upon the petitioner under Sec.395 read with 397, I.P.C. is proper and in accordance with law. 38. One more contention urged by learned counsel for the petitioner is that P.W. 11, Payaz, the receiver of stolen properties was not able to identify the petitioner in the court. This does not affect the case of the prosecution, because only at the instance of the petitioner, the investigating Officer, P.W. 14 was able to trace out the place and the identity of P.W. 11, from whom these stolen properties, M.Os. 1 and 2 were recovered. In fact, this is a very strong piece of evidence to connect the petitioner with the commission of crime, as discussed earlier. 39. Another special feature in this case is that P.W. 11, Payaz, in the trial court, during examination, has mentioned the name of the petitioner/accused as the person, who came along with another and sold the M.Os. to him. So, the fact that he deposed in the court that he could not say, whether the accused person, who was standing in the court was the actual person, who came along with another man, to his shop, because 3 1/2 years elapsed, reflects that the evidence of P.W. 11, is natural. to him. So, the fact that he deposed in the court that he could not say, whether the accused person, who was standing in the court was the actual person, who came along with another man, to his shop, because 3 1/2 years elapsed, reflects that the evidence of P.W. 11, is natural. When there is tangible material regarding the tracing out of P.W. 11, the receiver of the stolen properties, on his being pointed out by the petitioner/accused inability on the part of P.W. 11, to identify petitioner/accused in court pales into insignificance, Even assuming that this inability would be construed to be an infirmity, the evidence of P.W. 14, the investigating Officer to the effect that only the petitioner/accused who was standing in the court, pointed out the P.W.11, Payaz at Nellur, Andhra Pradesh, which makes the said infirmity ineffective. So, the close scrutiny of the above materials would lead to the inescapable conclusion that the petitioner alone was the perpetrator of the crime in this case. 40. Let me now have a quick look at the case law available on this subject. In Thavasi v. Mayandy, 1971 L.W. (Crl.) 199 this Court has considered the fact and modified the conviction from Sec.397, I.P.C. into a lesser offence, as there is no evidence for having used any deadly weapon, while committing the offence. This is not applicable to the present case, as it has has been concluded that deadly weapon, like knife has been used in this Case. 41. The decision in Phool Kumar v. Delhi Administration, A.I.R. 1975 S.C. 905 has also been cited to show that the prosecution should prove the use of the weapon. In the case on hand, it has been clearly proved by the prosecution that the petitioner/accused at the time of occurrence, while committing robbery carries in his hand a knife and by showing the same he completed his act of robbery, which is sufficient to attract the provisions of Sec.397, I.P.C. 42. The decision rendered by the Supreme Court in Kannan and others v. State of Kerala, A.I.R. 1979 S.C. 1127: 1980 M.L.J. Crl. The decision rendered by the Supreme Court in Kannan and others v. State of Kerala, A.I.R. 1979 S.C. 1127: 1980 M.L.J. Crl. 1:(1979) 2 S.C.J. 373: (1979)3 S.C.C. 319 : 1979 S.C.C. (Crl.)621 has also been referred to, in which it has been held that where a witness identifies an accused who is not known to him in the court for the first time, his evidence is absolutely valueless, unless there has been a previous identification parade. There is no dispute in this proposition. However, this decision would not stand in the way of the conclusion arrived at earlier in this case, on the reason, that since there are proper identification by the witnesses in the parade and in the court. 43. In Wakil Singh v. State of Bihar, A.I.R. 1981 S.C. 1392: 1981 Crl.L.J. 1014: 1981 S.C.C. Crl.634 the Supreme Court did not believe the witness P.W.9, who identified the accused in the identification parade, for the reason that the said witness on the first parade conducted on 9. 1965 did not identify, but he identified the accused four days later, in the second parade, and on that circumstances, the Supreme Court felt, that there is a doubt on the complicity of the accused. This case would not be applicable to the present case before me, in view of the different facts as discussed in detail earlier. 44.Ram Lakhan v. State of Uttar Pradesh, A.I.R. 1983 S.C. 65 A.I.R. 1983 S.C. 352(1): 1983 Crl.L.J. 691 (1): 1983 S.C.C. Crl. 339 the conviction under Sec.395, I.P.C., was set aside, on the ground that there is a finding by the lower court, that only one person was found participated in the said occurrence and as such, the Supreme Court held that an offence under Sec.395, I.P.C., was not made out. But in the present revision, there is a finding by the lower court, that six or more persons were involved in the crime. 45.In Habal Shaikh v. The State, 1991 Crl.L.J. 1258 the Calcutta High Court, while considering the beneficiary value of the identification parade, held that there shall not be undue delay in conducting the identification parade, inasmuch as early opportunity to identify tends to minimise the chances of the memory of the identifying witness fading away. 45.In Habal Shaikh v. The State, 1991 Crl.L.J. 1258 the Calcutta High Court, while considering the beneficiary value of the identification parade, held that there shall not be undue delay in conducting the identification parade, inasmuch as early opportunity to identify tends to minimise the chances of the memory of the identifying witness fading away. But in that case, since no explanation was given for holding a delayed identification parade, the benefit of doubt was given to the accused. But in the present case, as discussed earlier, the petitioner/accused was arrested on 10. 1991 and requisition was given to the Chief Judicial Magistrate, who in turn directed the Judicial Magistrate No.2, Ponneri, to conduct identification parade. This explanation has been accepted by the courts below. 46. In Latel v. State of M.P., 1994 Crl.L.J. 1122 the Supreme Court, while dealing with an appeal against acquittal, confirmed the order of acquittal and observed that there was no material to show that the accused participated in the dacoity or caused injury to the inmates of the house, nor any recovery was effected from them. This is not applicable to the facts of the present case. 47. The decision rendered in Satrugna alias Satrugna Parida and others v. State of Orissa, 1994 S.C.C. (Crl.) 1424 has been referred to, in which case, the Apex Court acquitted the accused, on the ground that there was no explanation for conducting the identification parade with considerable delay. As discussed earlier, there is sufficient explanation in the present case, for the delay in conducting the identification parade, which has been accepted. 48. The decision rendered in Narayan Singh and others v. State of M.P., 1994 S.C.C. (Crl.) 232 has also been referred to. The Apex Court in that case held that if there is a lapse of nearly three or four months, the accused who were found to be in possession of the stolen property which is the subject-matter of the dacoity would be held liable under Sec.412, I.P.C., and not under Sec.395, I.P.C. This is an appeal against acquittal preferred by the State, where the trial court rejected the evidence relating to identification parade of the accused. But this is not the case here. The evidence relating to identification, tracing out of P.W.1, the receiver of stolen property and recovery of M.Os. have been appreciated and accepted by two courts, viz. But this is not the case here. The evidence relating to identification, tracing out of P.W.1, the receiver of stolen property and recovery of M.Os. have been appreciated and accepted by two courts, viz. the trial court and lower appellate court. So, this Court considers that there is no reason to take a different view from that of the view taken by the courts below, in that aspects. 49. The decision rendered in Wilson Abraham Chouriappa v. State of Maharashtra, 1995 Crl.L.J. 4042 has been referred to. This case relates to the offence under Sec.397, I.P.C. Since no evidence was adduced to show that knife was used and no material has been produced to show that more than five persons have participated in the Crime, the Supreme Court came to the conclusion, that the offence of dacoity was not made out. But, the case on hand, as discussed earlier, the evidence relating to an offence under Sec.395 read with Sec.397, I.P.C. is available. 50. In Ramacharan Bhudiram Gupta v. State of Maharashtra, 1995 Crl.L.J. 4048 the Bombay High Court has held that the evidence of identification can only be relied upon, if all the chances of the suspects being shown to the witnesses prior to their test identification are eliminated. In this case, it has been elicited from P.W. 1, that prior to the identification parade, he did not see the accused. 51. Yet another decision of the Supreme Court in Ajit Singh v. State of Haryana, (1996) 2 Supreme Today 359 has been referred to, which relates to the case under Sec.397, I.P.C. In that case, there was no material to show that weapon was used and P.W.7 in that case admitted that he saw the accused in the police station before the identification parade, and as such, the Supreme Court held that there could be no offence under Sec.397, I.P.C., and the identification parade was of no use for the prosecution. As there are sufficient materials available in this present revision to establish an offence under Sec.395 read with Sec.397, I.P.C., against the petitioner, he could be convicted. 52. It is important to note that every case has to be decided on its own facts and merits, though the points involved therein have got to be decided in accordance with the settled principles of law, as decided by Apex Court. 52. It is important to note that every case has to be decided on its own facts and merits, though the points involved therein have got to be decided in accordance with the settled principles of law, as decided by Apex Court. In that fact situation, I am of the view that the findings which have been given by the trial court as well as the appellate court could not be said to be perverse, since in my view, both the courts below have given a correct finding on appreciation of the factual aspects and acceptable evidence. As such, this revision in Crl.R.C.No.763 of 1995 is liable to be dismissed. 53. Now, let me take the next case relating to S.C.No.64 of 1993, with reference to the incident, which took place on 14. 1991, the subject matter of Crl.R.C.No. 762 of 1995, on the file of this Court. 54. Mr.Sankarasubbu, learned counsel for the petitioner/accused, in this revision made submissions, which could be summarised as follows: .(i) Even according to the Judgment of the trial court, P.W. 1 Ramu, and P.W.2, Prema have failed to identify the petitioner in the identification parade and P.W. 11, Payaz, the receiver of the stolen property also could not identify the accused in court. In the absence of proper identification, the petitioner could not be convicted for the offence of dacoity. .(ii) The lower appellate court did not refer anything about the failure on the part of P.Ws.1, 2 and 4 to identify the accused at the identification parade, P.Ws. 1 and 2, though would say that they have identified the petitioner/accused in the parade, P.W. 10, the Judicial Magistrate, would say that they have not identified the petitioner. (iii) The mahazar witness, P.W.9, who has been examined to speak about the recovery turned hostile and so, the recovery could not be believed. .(iv) P.W.1 Ramu identified the accused only in court. In the absence of identification of the accused in the parade, the evidence of identification only in the court becomes valueless. .(v) P.Ws. 1 and 2 could not identify the stolen property M.O.1, since it was only a gold ingot. .(vi) Under Sec.397, I.P.C. the prosecution has to prove the using of the knife. In the instant case, there is no evidence to show that any of the accused used any deadly weapon, while committing the offence. .(v) P.Ws. 1 and 2 could not identify the stolen property M.O.1, since it was only a gold ingot. .(vi) Under Sec.397, I.P.C. the prosecution has to prove the using of the knife. In the instant case, there is no evidence to show that any of the accused used any deadly weapon, while committing the offence. (vii) To attract Sec.395, I.P.C. there must be five or more person involved in the offence of dacoity. But, in this case, these is no evidence to show that five or more persons were involved Even the F.I.R., in this case, was registered only under Sec.392, I.P.C. The witnesses would say that only four persons were involved in the crime. Therefore, the offence under Sec.395, I.P.C. is not made out. 55. Mr.S.Manimaran, learned Government Advocate appearing on behalf of the State countered the submissions made by learned counsel for the petitioner. 56. P.W.1 Ramu, working as a Conductor is a resi-. dent of Anna Nagar, Ponneri. P.W.2, Prema is her wife. P.W.3, Sumathi is the sister of P.W.2,. P.W.4, Vijayalakshmi is a neighbour. On 14. 1991, at about 2.15 A.M. midnight, while P.W.1 was sleeping in a cot, outside the house, as stated by P.W.1, four or five persons suddenly appeared and snatched a watch from P.W. 1 and threatened him at the point of knife and thereafter they broke open the door, trespassed into the house and snatched the jewels of P.Ws.2 and 3. Thereafter, they went to the next portion, in which P.W.4, Vijayalakshmi was residing and took away the cash and ran away. 57. It is however, relevant to note that though P.W. 1, Ramu would say that four or five persons came and committed the offence, P.Ws.2 to 4 uniformly and definitely would say that only four persons came with weapons and committed dacoity. Needless to say, to attract an offence under Sec.395, I.P.C, involvement of five or more accused should be proved. In this case, originally F.I.R. was registered for an offence under Sec.392, I.P.C, even though P.W.1 has stated in the F.I.R. also that four or five persons have trespassed into the house and committed dacoity. But the available materials produced before the court would show that only four persons have perpetrated the crime in this case. In this case, originally F.I.R. was registered for an offence under Sec.392, I.P.C, even though P.W.1 has stated in the F.I.R. also that four or five persons have trespassed into the house and committed dacoity. But the available materials produced before the court would show that only four persons have perpetrated the crime in this case. As such I am in agreement with the submission made by learned counsel for the revision petitioner that an offence under Sec.395, I.P.C, is not made out. 58. It is not correct to state that the mahazar witness, P.W9, Venkatesalu, turned hostile. In fact, P.W.9, deposed that he was present, when the confession was given by the Petitioner/accused, stating that he along with other committed dacoity in two places at Ponneri. He also identified the Petitioner/accused in the court, as the person, who gave confession to the police. 59. It is not also worthwhile to submit that P.W.1 was not able to identify his stolen jewel, because the prosecution case itself is that P.W. 11, Payaz, after purchasing the stolen property melted and converted into gold ingot. In that situation, one cannot identify the property. So, the said submission also lacks substance. 60. However, there has been a major lacuna in the prosecution. Which has been lost sight of by the courts below. P.W. 1, Ramu and P.W.2, Prema would say that they have identified the petitioner/accused in the parade. But, P.W.10, the Magistrate would definitely say, that P.Ws.1 and 2 have not identified the petitioner/accused in the identification parade. As referred to by learned counsel for the petitioner/ accused, in Kannan and others v. State of Kerala, A.I.R 1979 S. C. 1127 the Apex Court held that where a witness identifies an accused who is not known to him in the court for the first time, his evidence is absolutely valueless. It has also been observed in State of Maharashtra v. Sukhdev Singh and another, 1992 S.C.C. (Crl) 705 that in the absence of the test identification parade, it would be extremely risky to place implicit reliance on identification made for the first time in court after a long lapse of time. In view of these decisions, the evidence relating to the participation of the petitioner/accused in the crime cannot be taken into consideration. As such, an offence under Sec.397, I.P.C. is also not made out by the prosecution against the petitioner. 61. In view of these decisions, the evidence relating to the participation of the petitioner/accused in the crime cannot be taken into consideration. As such, an offence under Sec.397, I.P.C. is also not made out by the prosecution against the petitioner. 61. Then, this court has to see, whether any other lesser offence has been made out against the petitioner/accused in this case or not. The occurrence took place on 14. 1991. The petitioner was interrogated on suspicion by P.W. 14, Inspector of Police on 10. 1991. Then in pursuance of the voluntary confession given by the petitioner/accused, he took P.W. 14. Inspector of Police from the place of arrest viz. Ponneri, Tamil Nadu State to Nellur, Andhra Pradesh State, where P.W. 11, Payaz was identified by the petitioner/accused, to whom, he sold the stolen property. This was just after six months of the occurrence. But for the clue that was given by the petitioner/accused, in the form of confession, the admissible portion of which is Ex.P-2, P.W. 11, the receiver of the stolen property could not have been traced and the stolen property, M.O.I in this case could never be recovered. So, the evidence relating to the petitioner/accused pointing out P.W. 11, Payaz and the recovery of M.O.1 from P.W. 11, which has been spoken to by P.W.9, the mahazar witness, P.W.11, the receiver of stolen property and P.W. 14, the Inspector of Police would assumes very great importance. 62. Regarding the recovery of M.O.1 from P.W. 11, Payaz, the evidence of P.W. 14, Inspector of Police is clear and cogent, which corroborates the testimony of P.W. 11. P.W. 11, Payaz is not residing within the jurisdiction of P.W. 14. He is having his jewellery shop at Nellur, Andhra Pradesh. So, P.W.11, need not speak anything against the petitioner/accused, on the compulsion of P.W. 14. The mere inability of P.W.11, to point out the petitioner/accused in the court, cannot at all affect the case of the prosecution, in view of the tangible evidence of P.W. 14, that P.W. 11, was traced out only at the instance of the petitioner. So, this is a strong piece of evidence in the chain of circumstances, which point out that the stolen property which was in possession of the petitioner was sold to P.W.1 Payaz by the petitioner. Moreover, P.W. 11, Payaz specifically say, while deposing before the trial court on 17. So, this is a strong piece of evidence in the chain of circumstances, which point out that the stolen property which was in possession of the petitioner was sold to P.W.1 Payaz by the petitioner. Moreover, P.W. 11, Payaz specifically say, while deposing before the trial court on 17. 1994, that 3 1/2 years before, Ravana Babu (Petitioner) came and sold M.Os. 1 and 2 in S.C.No.62 of 1993 and after two or three months, he came and sold M.O.1 in this case. 63. In Narayan Singh and others v. State of M.P., 1994 S.C.C. (Crl.) 232 the Apex Court further held that “merely because certain stolen articles were recovered from the accused, they cannot be held to be decoits by invoking the presumption unless there is a recent possession.”, and that in that case, admittedly there is a lapse of nearly three or four months and as such, they would be held liable only under Sec.412, I.P.C. 64. In view of the above discussion and in the light of the finding arrived at earlier that Sec.397, I.P.C., is not made out against the petitioner/accused in this case, I am of the view, that an offence under Sec. 411, I.P.C., is made out. In that view of the matter, the conviction and sentence imposed upon the petitioner/ accused in S.C.No.64 of 1993, on the file of Assistant Sessions Judge, Tiruvallur, under Sec.395 read with Sec.397, I.P.C., to undergo R.I. for seven years has to be set aside, instead the petitioner/accused is to be convicted under Sec.411, I.P.C. 65. In view of the foregoing analysis, the conviction and sentence imposed upon other petitioner/accused under Sec.395 read with Sec.397, I.P.C., to undergo R.I. for 7 years, in S.C.No.62 of 1993, on the file of Assistant Sessions Judge, Tiruvallur, are confirmed and the revision in Crl.R.C.No. 763 of 1995 is dismissed. 66. The conviction and sentence imposed upon the petitioner/accused in S.C.No.64 of 1993, under Sec.395 read with Sec.397, I.P.C., are set aside, instead he is convicted for an offence under Sec.411, I.P.C., and sentenced to undergo R.I. for two years. Except this modification Crl.R.C.No.762 of 1995 is Dismissed.