JUDGMENT - D.K. TRIVEDI, J.:---We have heard these matters earlier on 1st October 1999 when Mr. Shetye, the learned Advocate appearing for the appellant-original accused No. 1 in Appeal No. 115 of 1995 has taken us through the evidence led by the prosecution as well as the judgment under challenge. However, as the appeal being Criminal Appeal No. 12 of 1995 filed by the appellant-accused No. 2 the learned Advocate Mr. Tare was not present and appeal being Criminal Appeal No. 115 of 1995 was ordered to be heard with Criminal Appeal No. 12 of 1995. We have adjourned the matter to 5th October 1999. Accordingly, the matter was reached hearing today. 2. We have heard these matters on 1st October 1999 and Mr. Sachin Shetye the learned Advocate for the appellant in Criminal Appeal No. 115 of 1995, has taken us through the evidence led by the prosecution as well as judgment under challenge. However, as the appeal being Criminal Appeal No. 12 of 1995 filed by the appellant original accused No. 2 through advocate Shri. Tare who has also challenged the order of conviction and sentence, was not pressing and as both the appeals being Appeal Nos. 12 of 1995 and 115 of 1995 arising from the same judgment and were ordered to be heard together, we have adjourned both the matters to 5th October 1999 and accordingly, these matters were reached for hearing today. 3. We have heard Shri. Tare the learned advocate appearing for the appellant-original accused No. 2 as well as Mr. Shetye for the appellant-original accused No. 1 and the learned Addl. Public Prosecutor Mr. Singhal for the State. 4. In all five accused including the appellants were placed for trial before the learned Sessions Judge, Greater Mumbai in Sessions Case No. 627 of 1992. As per the charge framed against the accused, all the accused had on 10th February 1992 at about 14.30 hours with the intention to commit house trespass in order to commit offence punishable for imprisonment for life by entering the house of Smt. Fehmida Muslim situated at 56, Wood House Rd. As per the charge framed against the accused, all the accused had on 10th February 1992 at about 14.30 hours with the intention to commit house trespass in order to commit offence punishable for imprisonment for life by entering the house of Smt. Fehmida Muslim situated at 56, Wood House Rd. 2nd Floor, Colaba, Bombay-5 and thereby committed the offence under section 450 read with section 34 of the Indian Penal Code and further all the accused in furtherance of their common intention did confine Smt. Fehmida Muslim in bath-room for the purpose of extracting the property from her and thereby committed the offence punishable under section 437 read with section 34 of the Indian Penal Code and further all the accused in furtherance of their common intention committed dacoity in the residential premises of Smt. Fehmida Muslim and committed the theft of cash amount, vcp, gold ornaments belonging to Smt. Fehmida Muslim valued approximately Rs. 1,03,400/- and thereby committed the offence under section 395 read with section 34 of the Indian Penal Code and the original accused No. 1 appellant in Criminal Appeal No. 115 of 1995 was in addition, charged for committing dacoity by using deadly weapon and thereby committed offence punishable under section 395 read with section 397 of the Indian Penal Code. In respect of the offence, a complaint was filed by Smt. Fehmida on the very day on 10th February 1992 at 15.20 hours at Cuffe Parade Police Station in respect of offence committed at her house on the very day viz. 10th February 1992 between 14.30 hours and 15.30 hours. As found from the evidence that the intimation about the incident as conveyed to her husband Shri. Mohammed Husein on 10th February 1992 and immediately thereafter the Senior Police Inspector visited the place of occurrence viz. the residence of the complainant. The complaint was recorded and on the very day, the panchanama of scene of offence was drawn and during the course of investigation the accused were arrested and the Accused No. 1 has given voluntary statement on 24th February 1992 and search was carried out. In further investigation and after the arrest of the accused, identification parade was arranged before the Executive Magistrate. In further investigation and after the arrest of the accused, identification parade was arranged before the Executive Magistrate. On completion of the investigation, the police has filed the charge sheet against all the accused and after committal order, all the accused were placed for trial as aforesaid before the learned trial Judge. The defence of the accused is of total denial and accordingly, to prove the case against the accused, the prosecution has examined in all 11 witnesses. On going through the evidence and judgment under challenge, the learned trial Judge has held that the prosecution has proved that Accused Nos. 1 to 4 had on or about 10th February 1992 at about 14.30 hours with the common intention committed house trespass of the complainant situated at Colaba Mumbai and thereby committed offence under section 450 read with section 34 of the Indian Penal Code and further by accepting the evidence of the complainant Fehmida, has further recorded finding that original Accused Nos. 1 to 4 with their common intention confined Smt. Fehmida in the bath room for the purpose of extracting the property from her and thereby committed offence under section 347 read with section 34 of the Indian Penal Code and further that the accused Nos. 1 to 4 committed dacoity in the house of the complainant and committed theft of cash, VCR and gold ornaments approximately valued at Rs. 1,03,400/- and the accused have committed offence under section 395 read with section 34 of the Indian Penal Code and while committing dacoity, deadly weapon i.e. knife was used and thereby committed offence under section 395 read with section 397 of the Indian Penal Code. 5. We are taken through the evidence of complainant Fehmida and evidence of identification parade held wherein the accused were identified by the complainant and accordingly, the learned Judge has while accepting the prosecution case, accepted the evidence of prosecution witnesses as well as the evidence regarding the identification of the accused. 6. As the learned Judge has accepted the evidence of the prosecution witnesses and held that the accused are guilty, the learned Judge has after hearing the accused on the point of sentence, the appellant in Criminal Appeal No. 12 of 1995 filed by original accused No. 2 was ordered to suffer R.I. for two years and fine of Rs. 6. As the learned Judge has accepted the evidence of the prosecution witnesses and held that the accused are guilty, the learned Judge has after hearing the accused on the point of sentence, the appellant in Criminal Appeal No. 12 of 1995 filed by original accused No. 2 was ordered to suffer R.I. for two years and fine of Rs. 500/- in default R.I. for one month for the offence under section 450 read with section 34 of the Indian Penal Code and for the offence under section 347 read with section 34 of the Indian Penal Code, the learned Judge has imposed sentence for R.I. for six months and to pay a fine of Rs. 100/- in default, R.I. for one week and for the offence under section 395 read with section 34 of the Indian Penal Code, the learned Judge has imposed sentence of R.I. for two years and to pay a fine of Rs. 500/- in default R.I. for one month and all the substantive sentences were ordered to run concurrently. So far as the appellant in Criminal Appeal No. 115 of 1995 filed by the original accused No. 1, the learned Judge has imposed the same sentence for the offence under section 450 read with section 34 of the Indian Penal Code. However, while imposing sentence for the offence under section 395 read with section 397 of the Indian Penal Code, the learned Judge has sentenced R.I. for seven years and all the substantive sentences were ordered to run concurrently. 7. On going through the record and considering the submission of Mr. Shetye, the order of conviction and sentence recorded by the learned trial Judge against the original accused No. 1 appellant in Criminal Appeal No. 15 of 1995, as found from the record he was arrested by the police on 20th February 1992 and during the trial, he was not released on bail and even thereafter, when the order of conviction and sentence was recorded and the said order of conviction and sentence was challenged by preferring appeal, the appellant Accused No. 1 was not released on bail. Considering the fact that he was arrested by the police on 20th February 1992, the appellant-original Accused No. 1 in Appeal No. 15 of 1995 had undergone the sentence imposed on all counts even on the default clause by now. 8. Mr. Considering the fact that he was arrested by the police on 20th February 1992, the appellant-original Accused No. 1 in Appeal No. 15 of 1995 had undergone the sentence imposed on all counts even on the default clause by now. 8. Mr. Tare the learned advocate appearing for the appellant in Criminal Appeal No. 12 of 1995 had also while taking us through the evidence, contended that the learned Judge was not right in convicting the accused and according to him, even the complainant has also not given any description about the person against whom the complaint was filed and accordingly, he tried to submit that even the identification of the accused by the complainant held before the Executive Magistrate, she was not in a position to identify the accused and according to him, the learned Judge was not right in accepting her evidence. He next submitted that even while doing identification parade, the learned Executive Magistrate has also violated the guidelines for conducting such identification parade and if the evidence in respect of identification of the accused is taken out, the order of conviction and sentence recorded by the trial Court deserves to be set aside. 9. On going through the evidence, we are not satisfied about the manner in which the identification parade was held by him. However, on going through the evidence of the complainant P.W. 2 and as per her evidence, the accused were engaged for fixing the tiles in her flat prior to the incident. So far as the evidence of P.W. 2 complainant even as found from the cross-examination, there is nothing to suggest that her evidence requires to be discarded. She has identified the accused even in the Court. So far as the accused Nos. 1 to 4 are concerned, when the evidence is acceptable and the learned trial Judge has rightly accepted the prosecution case while accepting her evidence. In our view, the appreciation of the evidence by the trial Court was proper and the conviction recorded by the trial Court deserves to be confirmed. 10. So far as the accused Nos. 1 to 4 are concerned, when the evidence is acceptable and the learned trial Judge has rightly accepted the prosecution case while accepting her evidence. In our view, the appreciation of the evidence by the trial Court was proper and the conviction recorded by the trial Court deserves to be confirmed. 10. Considering the sentence imposed on the accused No. 2 in Criminal Appeal No. 12 of 1995, it is transpired that even during the trial, the prosecution has also argued that the lenient view will be taken while imposing sentence and accordingly, the learned Judge while convicting the accused under section 395 read with section 34 of the I.P.C. as against the R.I. for two years and fine of Rs. 500/- in default of payment of fine R.I. for one month. Even the sentence imposed, in our view, is proper which is not required to be interfered by reducing the same as urged by Shri. Tare the learned advocate appearing for the accused. 11. Considering the overall prosecution case, we dismiss both the appeals and confirm the judgment and order of conviction and sentence dated 15th November 1994 passed in Sessions Case No. 627 of 1992 recorded by the trial Court. The bail bonds of the appellant-accused No. 2 Bhimram Lachaji Meghwal in Criminal Appeal No. 12 of 1995 are cancelled and he is directed to surrender to the Sessions Court to serve out remaining sentence. Appeals dismissed. -----