Judgment 1. Both the revisions could be disposed of in this common order, as the petitioners in these Revisions are the accused in a single case. 2. Sarkarai alias Muthusamy alias Sekar, who is arrayed as A-3 and Mohana Sundaram, who is arrayed as A-4 in S.C.No.41 of 1995 on the file of Additional Assistant Sessions Judge, Erode, were convicted for the offence under Sec.395 read with 397 of I.P.C. and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.1,000 each, in default to undergo simple imprisonment for 3 months. In the Appeal as well in C.A.Nos. 130 of 1996 and 52 of 1997 on the file of I Additional District Judge-cum-Chief Judicial Magistrate, Erode, the said conviction and sentence were confirmed. As against these judgments, the present revisions have been filed by the petitioners. 3. The fact of the case are these: (a) P.W.1 Govindaraj alias Kuttiyanna, P.W.2 Manoranjitham, the mother of P.W.1 and one Tamizhselvi, the daughter of P.W.2 were residing at Door No.3/279, Bharathi Nagar, Chinniyampalayam village. P.W.2s husband, out of misunderstanding, was living separately in Malaiyampalayam. On 31.10.1994 mid night, when P.Ws.1 and 2 and Tamizhselvi were sleeping inside the house, one of the accused tapped the door and called P.W. 1 stating that his father died due to accident and telegram had come carrying the said intimation. Immediately, P.Ws.1 and 2 and Tamizhselvi opened the door after switching on the lights. When P.Ws. 1 and 2 enquired the said person about the telegram, suddenly, the other accused persons entered into the house. They took out the knives and put them on the neck of the witnesses: They snatched gold jewels including ‘thaalikodi’ from P.W.2 and took away a cash of Rs. 1,150 and some jewels from the suitcase and tied them with the ropes. Thereafter, they locked the house and ran away from the place. After they left, the witnesses made a hue and cry. P.W.3 Karuppiah, the Watchman in the neighbouring house came into the house on hearing the noise and untied them. Early morning at 6 o’clock, P.W.1 went to the house of P.W.4 Sellathalpalayam. Thereafter, both P.Ws. 1 and 4 went to Modakurichi Police Station and gave a complaint. After they left, the witnesses made a hue and cry. P.W.3 Karuppiah, the Watchman in the neighbouring house came into the house on hearing the noise and untied them. Early morning at 6 o’clock, P.W.1 went to the house of P.W.4 Sellathalpalayam. Thereafter, both P.Ws. 1 and 4 went to Modakurichi Police Station and gave a complaint. P.W.9, the Sub Inspector received the complaint at 3.00 p.m. and registered the case in Crime No.316 of 1996 for the offence under Sec.397, I.P.C. P.W.1, the Inspector of Police took up further investigation, came to the scene and observed formalities. (b) On 6.11.1994 at about 6.00 p.m. P.W.11, the Inspector of Police arrested A-l Rajendran and recovered M.O.2 gold bangle, M.O.10 series, cash of Rs.132 and M.O.11 knife from him under Mahazar Ex.P-14. This was attested by P.W.7 and another. On 7.11.1994 he arrested one Ramu and recovered from him M.O.1 Thaalikodi and M.O.12 veechu aruval under mahazar Ex.P-15. This was also attested by P.W.7 and another. On 8.12.1994 at about 11.00 a.m., P.W.11 arrested A-3, petitioner Sarkarai alias Muthusamy alias Sekar and recovered MO.13 knife under mahazar Ex.P-16, attested by P.W.7. P.W.10, the Inspector of Police, who is investigating another Crime No.52 of 1994, arrested A-2 Sankaranarayanan and recovered a polythene cover which contained a wrist watch and M.O.3 gold bangle, involved in this case under mahazar Ex.P-19. (c) On 12.12.1994, on the basis of requisition Ex.P-4, P. W.6, the learned Judicial Magistrate No.2, Erode conducted identification parade in which A-1 Rajendran and one Ramu were identified by P.Ws.l and 2 and Tamizhselvi. Again on 20.12.1994, in the identification parade, A-3 Sarkarai alias Muthusamy alias Sekar was identified in the presence of P.W. 6, the learned Judicial Magistrate by P.Ws.l and 2 and another. On 21.12.1994, A-2 Sankaranarayanan was identified in the parade by P.Ws.l and 2 and another. During the course of investigation, all the properties recovered from the accused were identified by the witnesses as the jewels stolen from their house. After finishing the investigation, the charge-sheet was filed against the petitioners and others. 4. In the meantime, one of the accused by name Ramu was absconding. So, the case in respect of the said Ramu was split up and the trial was proceeded as against the petitioners and other two accused in S.C.No.41 of 1995. 5. After finishing the investigation, the charge-sheet was filed against the petitioners and others. 4. In the meantime, one of the accused by name Ramu was absconding. So, the case in respect of the said Ramu was split up and the trial was proceeded as against the petitioners and other two accused in S.C.No.41 of 1995. 5. On the side of the prosecution, P.Ws.l to 11 were examined, Exs.P-1 to P-21 were filed and M.Os.l to 13 were marked. 6. On conclusion of trial, the lower court found that accused 1 to 4 guilty for the offence under Sec.395 read with 397, I.P.C. and sentenced them to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 1,000 each, in default to undergo simple imprisonment for three months. As stated earlier, this verdict given by the trial court was confirmed by the lower appellate court in the appeal. 7. Mr.Uthirasamy, the counsel appearing for the petitioners, challenging the above said conviction and sentence in this revision would press into service the following contentions: (i) The evidence relating to the identification parade and recovery cannot be believed as there are various inconsistencies found in the evidence of the witnesses. (ii) As regards A-3, even assuming that the allegations had been proved, the offence under Sec.392, I.P.C. alone would be made out, as the materials would show that only four persons participated in the commission of the crime. (iii) With reference to A-4, the petitioner Mohana Sundaram there is no direct to the effect that the petitioner Mohanasundaram, who was well known to the complainant party, had directly participated in the commission of crime. 8. In reply to the above contentions, the learned Government Advocate, in justification of the judgments of the courts below, would contend that there are materials for concluding that the petitioners are liable to be convicted for the charges levelled against them. 9. At the outset, I must mention that a perusal of the judgments and other records would make it clear that there are no infirmities in the evidence collected by the investigating agency with reference to the identification parade and the recovery. A-3 was arrested on 8.12.1994. The identification parade was conducted on 15.12.1994 and 20.12.1994. Immediately after his arrest, M.O.13 knife was recovered from him. A-3 was arrested on 8.12.1994. The identification parade was conducted on 15.12.1994 and 20.12.1994. Immediately after his arrest, M.O.13 knife was recovered from him. The perusal of the records would also show that the involvement of A-3 came to be known to the investigating officer only after the arrest of A-I on 6.11.1994 and A-2 on 9.11.1994 and that in the identification parade, P.W.1 and P.W.2, the victims identified him correctly in the presence of P.W.6, the learned Judicial Magistrate. There is nothing to indicate that this person was shown to P.Ws. 1 and 2 before the identification parade. Therefore, in my view, both the courts below are correct in coming to the conclusion that the identification parade was held by following the proper procedure and A-3 was correctly identified by P.Ws.l and 2. 10. Regarding A-4, the main contention is that there is no direct evidence against him and that his name was not mentioned in the F.I.R., especially when the other names were given in the F.I.R. 11. The above submission, in my view, has got some force. It is a stand taken by the prosecution, according to the F.I.R., that only four persons participated in the commission of crime. No doubt, it is true that during the course of examination, P.Ws.1 and 2 would make stray reference about five persons. But at any rate, P.Ws.1 and 2 did not state that A-4 was one among the said five persons. 12. Moreover, there is no identification parade as far as A-4 is concerned. During the course of investigation, it was found out that A-4, who was a partner along with P.W.1 in a company, due to misunderstanding, came out of the partnership and then onwards they were not in talking terms. As indicated earlier, there was no allegation either in the F.I.R. or in the deposition that A-4 came to the scene at the time of occurrence, nor A-4 took any part in the offence committed inside the house of P.W.1. Therefore, the materials available on record would make it clear that only four persons came to the scene and committed this grave crime. 13. Therefore, the materials available on record would make it clear that only four persons came to the scene and committed this grave crime. 13. In the said situation, in the absence of direct evidence against A-4, this Court cannot convict A-4 for the offence under Sec.395 read with 397, I.P.C. It is true that the portion of stolen jewels were recovered from A-4 on his confession after his arrest on 12.12.1994. Till 8.12.1994 on which date A-3 was arrested, nobody suspected the involvement of A-4. Of course, there was enmity between P.W.1 and A-4. Out of enmity if the prosecution party wanted to implicate in this case, P.W.1 would have very well implicated A-4 also in the F.I.R. Not even in the investigation they did say anything about A-4s direct involvement with the main offence. But, the investigation agency was able to find out the hand of A-4 only on the arrest of A-3 on 8.12.1994. So, only on getting the information, A-4 was arrested on 12.12.1994 and the jewels M.Os.4 to 6 were recovered on his confession. Therefore, the cumulative effect of the evidence would show that the accused No,4 had known about the offence committed by all the other accused and then received the jewels knowing fully well that they were stolen properties. 14. Therefore, in the absence of direct and admissible evidence as against A-4 with reference to the main offence, at the most, this Court could convict the petitioner Mohana Sundaram (A-4) not under Sec.395 read with 397, I.P.C. but only under Sec.412, I.P.C. 15. On similar facts, the Apex Court in Man Singh v. State of M.P. Man Singh v. State of M.P. , 1993 Crl.L.J. 3669 had an occasion to deal with the case, in which the accused were convicted for offences under Secs.395, 397 and 449, I.P.C. In the said case, the accused were arrested three months later and the stolen properties were recovered. The Apex Court in that case held that the offence falls not under Sec.395, but under Sec.412, I.P.C, The relevant observation is as follows: “However, the recoveries are duly effected and the Sub-Inspector as well as the witnesses spoke about the same. 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. 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. In this case, admittedly, there is a lapse of nearly three or four months. In these circumstances, we think it would be safe particularly when they were acquitted by the trial court to convict them only for the offence of being in possession of the stolen property.” 16. In the instant also, merely because the petitioner Mohana Sundaram (A-4) was found in possession of the stolen properties, the presumption cannot be invoked to hold that he is one of the robbers or dacoits. Therefore, in my view, the conviction imposed under Sec.395 read with 397, I.P.C is not sustainable in law and hence the same is set aside. Instead, A-4 is convicted for the offence under Sec.412, I.P.C. 17. As regards A-3, Mr.Uthirasamyu citing a judgment rendered in Om Prakash and another v. State of Rajasthan Om Prakash and another v. State of Rajasthan , (1998)1 Crimes 139 (S.C.)would submit that when it is established that only fourpersons were participants in the commission of crime, it may not be proper to convict the accused under Sec.395, I.P.C. and as such, at the most he would be liable to be convicted under Sec.392, I.P.C In that case, out of five, two persons were acquitted. There was no fending that three convicted accused and two other unknown persons committed dacoity. Therefore, the conviction under Sec.395, I.P.C. was altered into one under Sec.392, I.P.C. 18. Similarly in this case also, as pointed out earlier, it has been established that only four persons were involved in the Commission of crime. Therefore, there is no difficulty in agreeing with the said contention to hold that the petitioner Sarkarai alias Muthusamy alias Sekar (A-3) is liable to be convicted only under Sec.392 of the Indian Penal Code. 19. The prosecution has established that the accused used weapons. Therefore, instead of convicting A-3 under Sec.395 read with 397, I.P.C, the conviction could be altered into one under Sec.392 read with 397, I.P.C. Hence, the minimum sentence of imprisonment for 7 years for offence under Sec.397, I.P.C. is sustained. Except the alteration of the offence, in other respects the conviction and sentence as regards A-3 is confirmed. 20. Therefore, instead of convicting A-3 under Sec.395 read with 397, I.P.C, the conviction could be altered into one under Sec.392 read with 397, I.P.C. Hence, the minimum sentence of imprisonment for 7 years for offence under Sec.397, I.P.C. is sustained. Except the alteration of the offence, in other respects the conviction and sentence as regards A-3 is confirmed. 20. As regards A-4, Mr.Uthirasamy requests this Court to consider by reducing the sentence of imprisonment for 7 years. Though he could be sentenced for 10 years for the offence under Sec.412, I.P.C, in the circumstances of the case, especially when it was not alleged that he came to the scene and instigated the others to commit dacoity, the interest of justice would be met if he is sentenced to undergo imprisonment for four years, and accordingly the sentence is modified. 21. With the above modification, the revisions are dismissed.