Judgment J.G. CHITRE, J.:---All these appeals are hereby decided by this common judgment because all these appeals arise out of the same judgment which has been passed by the Court of Sessions for Greater Bombay in Sessions Case No. 655 of 1990 by which the appellants in the appeals mentioned above have convicted for offences punishable under sections 395 and 397 of the Indian Penal Code. Accused No. 2 Chandrakant Sudkoji Bhogal has been sentenced to undergo R.I. for 8 years and to pay fine of Rs. 5,000/- in default to undergo further S.I. for six months. Accused Nos. 2, 3, 5, 6, 7, 8 and 9 have been sentenced to undergo R.I. for 8 years and to pay fine of Rs. 5,000/- in default to undergo further S.I. for six months. (The names of those accused are- Chandrakant Sudkoji Bhogal - accused No. 2, Sanjay Pandurang Gaikwad - accused No. 3, Babu Lahu Malwankar - accused No. 5 Manohar Vishrarm Rawanak - accused No. 6, Pandurang Sitaram Padiyar - accused No. 7, Dilip Pandurang Dhuri - accused No. 8, Kamlakar Sitaram Nemani - accused No. 9. Accused No. 4 - Shailesh Balkrishna Patil has been sentenced to undergo R.I. for five years and to pay fine of Rs. 5,000/- in default to undergo S.I. for six months. All these accused have challenged the correctness, propriety and legality of the said judgment and order. 2. Shri Gavankar is appearing for accused No. 4 Shailesh Patil in Criminal Appeal No. 253 of 1995. Shri Gole is appearing for accused No. 3 Sanjay Pandurang Gaikwad in Criminal Appeal No. 318 of 1995. Shri Uday Warunjikar is appearing for accused No. 5 Babu Lahu Malwankar in Criminal Appeal No. 366 of 1995. Shri Sachin Shetye is appearing for other accused in Criminal Appeals Nos. 318 of 1995, 481 of 1995 and 283 of 1996 (as appointed at the expense of State) for defending these appellants Nos. 2, 6 and 9. 3. Sessions Case pertains to the year 1990, the appeals pertain to the years 1995-96 majority of the appeals pertain to the year 1995. Shri Gavankar, Gole and Warunjikar have argued their appeals at length and referred to the evidence at length. The same has been done by learned Public Prosecutor, Shri Singhal. 2, 6 and 9. 3. Sessions Case pertains to the year 1990, the appeals pertain to the years 1995-96 majority of the appeals pertain to the year 1995. Shri Gavankar, Gole and Warunjikar have argued their appeals at length and referred to the evidence at length. The same has been done by learned Public Prosecutor, Shri Singhal. Therefore, this Court does not find any necessity of waiting for Shri Sachin Shetye because as submitted by Shri Warunjikar, these accused have virtually undergone the sentence inflicted on them. 4. Shri Gole shouldering the responsibility of reading evidence at length took this Court to every aspect of the relevant piece of the evidence. His work has been adopted by S/Shri Gavankar and Warunjikar as well as Shri Singhal, Public Prosecutor who restricted their submissions to other aspects of the hearing of the appeals, of course touching every relevant facet of the case related to their respective obligations. 5. The prosecution case in brief is that on 10th May, 1990 at about 9.15 a.m. as per routine, P.W. 1 Satya Vijay Chavan accompanied by his colleague peon, Nana Patil left their office for going to Bank of Baroda, Branch Bhandup, in order to withdraw cash of Rs. 3 lakhs which was required for disbursing the salaries of the employees of Security Board Office and reached the Bank at 9.30 a.m. holding a V.I.P. brief-case (Article 33) for storing the currency notes which were to be withdrawn from the bank. The said bank used to be opened at 8 a.m. and the work used to start at about 8.30 a.m. and used to be continued till 12.30 p.m. P.W. 1 Satyavijay Chavan presented the cheque in the bank and against it collected the sum of Rs. 3 lakhs in currency notes in wads of different denominations (1) Rs. 100 denomination (13 packets), (2) Rs. 50/- denomination (30 packets), (3) Rs. 10/- denomination (18 packets) and Rs. 2/- denomination (10 packets). Those currency notes were bearing Bank's usual slips and sealed condition seals were applied by the Cashier of the Bank, Madhav Patankar (P.W. 14). After verifying the said amount, P.W. 1 Satyavijay Chavan put all the said currency notes in the V.I.P. brief-case which was brought by them, locked it and handed over the said brief case to his Peon Nana Patil (P.W. 2). 6. After verifying the said amount, P.W. 1 Satyavijay Chavan put all the said currency notes in the V.I.P. brief-case which was brought by them, locked it and handed over the said brief case to his Peon Nana Patil (P.W. 2). 6. They left the Bank premises at 10.00 a.m. for returning to their office. Initially they searched for Rickshaw but they could not get it and, therefore, went ahead by passing a chawl known as Paper-Minit Chawl and came to Lal Bahadur Shastri Marg (hereinafter referred to as L.B.S. Marg for short). After crossing L.B.S. Marg, they entered the compound of Copper Rolling Compound from where the office of the Security Board was at near distance. They followed a kachha appraoch road through the said Copper Rolling Compound. When they came near the weigh bridge of Copper Rolling Compound situated on the said kachha road, one person appeared before them and threatened P.W. 1 Chavan by showing him a revolver and at the same time other four persons followed him and surrounded P.W. 2 Nana Patil who was carrying the brief case containing the said currency notes which Nana Patil was holding in his hand. Those four persons were armed with weapons like knives, choppers and they attacked P.W. 2 Nana Patil for snatching the brief-case. Inspite of the resistance, those persons succeeded in snatching out the said brief-case causing injury to the left hand by using the weapons which they were holding in their hands. 7. While the said act of robbery was going on, Madhav Sonawane (P.W. 16), a security guard of the same office was also going by the same route to his office, was restrained by three more persons by showing him knives and they threatened him and prevented him from moving. P.W. 16 Madhav Sonawane got frightened. After robbing off P.W. 1 and 2, snatching out the said brief-case, the miscreants ran away. These three persons who accosted P.W. 16 Sonawane went towards Bhandup Railway Station and those other five robbers ran towards the L.B.S. Marg and escaped in a taxi towards Kanjur Marg. 8. The F.I.R. was lodged by P.W. 1 Satyavijay Chavan after informing the superiors of their office when Satyavijay Chavan was accompanied by the Accountant, Shri S.N. Garje. These three persons who accosted P.W. 16 Sonawane went towards Bhandup Railway Station and those other five robbers ran towards the L.B.S. Marg and escaped in a taxi towards Kanjur Marg. 8. The F.I.R. was lodged by P.W. 1 Satyavijay Chavan after informing the superiors of their office when Satyavijay Chavan was accompanied by the Accountant, Shri S.N. Garje. While they were proceeding towards Bhandup Police Station as per the prosecution case, P.W. 16 Madhav Sonawane met them and supplied the information about the Taxi No. MHQ 4094 which was used by those five robbers who went towards the Kanjurmarg. The F.I.R. (Ex. 25) as recorded, Investigation proceeded and the appellants were arrested for the crime which was registered in the context of the said F.I.R. by the officers of the Bhandup Police Station on 11-5-90. The accused were interrogated in the course of investigation and on 12-5-90 the accused Nos. 4 and 5 gave the information to the Investigating Officer and panch witnesses that they were willing to disclose the information which was to lead the investigating agency to the discovery of the fact that some bags were concealed in their respective houses and the houses of their friends. In pursuance of the information given by these two appellants-accused, it was discovered that some bags have been concealed in their respective houses and some bags were concealed in the houses of their friends respectively. Those bags were containing the currency notes which were having label seals and were pinned with stapler. Those currency note bundles were seized by drawing respectively panchanamas. On 11-5-90, accused No. 3 Sanjay Gaikwad gave the information of the similar nature and bags were discovered concealed in his house. Other remaining appellants-accused supplied the information on 13-5-90 to the Investigating Officer and the panch witnesses which led the investigating agency to the discovery of the fact that some bags containing currency notes were concealed in respective houses or the houses of their friends. Some golden ornaments were found to have been kept in such bags which were discovered in pursuance of the information given by the accused Nos. 2, 3, 6, 7, 8 and 9. 9. The learned Judge recorded the evidence of the prosecution witnesses examined by the prosecution in support of its case for proving the guilt of the said accused-appellants. Some golden ornaments were found to have been kept in such bags which were discovered in pursuance of the information given by the accused Nos. 2, 3, 6, 7, 8 and 9. 9. The learned Judge recorded the evidence of the prosecution witnesses examined by the prosecution in support of its case for proving the guilt of the said accused-appellants. The appellants pleaded the defence of alibi by contending that they were not present at the time quoted by the prosecution near the spot of the alleged incident. They raised the defence of denial except the appellants Nos. 3, 4 and 5 who raised the defence of alibi. Appellants Nos. 3, 4 and 5 contended that at the relevant time, they were present in the High Court of Bombay, premises and, therefore, could not have been presented at the alleged spot of offence. Appellants Nos. 4 and 5 examined two defence witnesses in support of their plea of alibi and produced the Muster Register meant for recording the presence of the Hamals employed in the office of the High Court of Bombay, the Muster Roll was maintained and kept in the office of the Prothonotary Senior Master. 10. The learned trial Judge, after appreciating the evidence on record, accepted the prosecution evidence in respect of the appellants who have been convicted and sentenced however discarded the said evidence in respect of charge which was levelled against accused Nos. 1 and 9 who were acquitted by him. 11. The learned Counsel Shri Gavankar and Shri Warunjikar appearing for the original accused Nos. 4 and 5, submitted that the learned trial Judge committed an error in not properly appreciating the evidence on record. They pointed out that it was an error on the part of the learned trial Judge in discarding the defence evidence without assigning proper, cogent and acceptable reasons. They submitted that these two accused cannot be said to be have been properly and legally identified as culprits committing the said alleged dacoity at the spot of the incident. They submitted that the evidence of P.W. 16 Sonawane is not sufficient enough to establish their identity as the culprits who could have been at the spot near the said compound. They submitted that the evidence of P.W. 16 Sonawane is not sufficient enough to establish their identity as the culprits who could have been at the spot near the said compound. They contended that both these accused were present in the High Court premises as they were on duty at about 10.00 a.m. or 10.30 a.m. and they could not have been present on the spot of the incident taking into consideration the distance between these two spots. Both these Advocates submitted that the prosecution did not prove that the currency notes were discovered in pursuance of the information given by these two accused because according to them, another panch witness was not examined by the prosecution in support of its case. They further submitted that even if it is proved that those currency notes were seized in pursuance of the information given by these two accused, there is no nexus between the currency notes which, according to the prosecution case, were given to P.W. 1 Chavan and P.W. 2 Nana Patil by the Cashier of Bank of Baroda, Bhandup Branch on 10-5-90 at about 9 a.m. or so. According to them, as no nexus has been established between those currency and the said accused, the said accused could not have been convicted for the offence alleged against them. While basing this argument on those points, both Shri Gavankar and Shri Warunjikar made reference to the evidence which was read at length by Shri Gole, learned Advocate appearing for accused No. 3 Sanjay Gaikwad. They contended that the order of conviction and sentence is improper, incorrect and illegal and needs to be set aside and those accused need to be acquitted. 12. Shri Gole, learned Counsel appearing for the accused No. 3 Sanjay Gaikwad, submitted by making reference to the evidence that the prosecution did not prove that accused No. 3 Sanjay Gaikwad was the culprit who was connected with the said alleged incident of looting. While pressing this point further, he criticised the evidence adduced by the prosecution in respect of the identification parade. He submitted that the identification parade was illegally conducted because the officer conducting the identification parade was not following the guidelines given by the High Court for conducting the identification parades. While pressing this point further, he criticised the evidence adduced by the prosecution in respect of the identification parade. He submitted that the identification parade was illegally conducted because the officer conducting the identification parade was not following the guidelines given by the High Court for conducting the identification parades. Shri Gole submitted that the identification parade was performed in a hall which was in the premises of the Bhandup Police Station and, therefore, the place of identification parade was not free from the interference from the officers and the personnel of the Bhandup Police Station. Shri Gole pointed out that a sticking plaster strip was affixed on the face of accused No. 3 and that was facilitating the witnesses P.W. 1 and 2 to identify the said accused. He also submitted that it was necessary for the said officer to keep more number of dummies keeping in view the guidelines provided by this Court which was indicating that for every accused there should be more than two dummies to stand in the row. Shri Gole further submitted that the way in which the identification parade was conducted was by itself illegal and was not fair at all. 13. He further submitted that the dummies were not properly collected, dummies were already present, the witnesses who were to identify the said accused were also already present in the premises. Pointing out all these things, he submitted that the identification parade has been vitiated and, therefore, the identification of accused No. 3 made by P.W. 1 and 2 in the Court cannot be accepted to be a piece of evidence for holding him guilty of the offence alleged against him. In this context, Shri Gole place reliance on the judgment of the Division Bench of this Court in the matter of (Rarmchandran Bhudiram Gupta v. State of Maharashtra)1, reported in 1995 Cri.L.J. 4048 wherein on the points submitted by him, the identification parade was held to have been vitiated. Shri Gole further submitted that the prosecution witnesses mentioned above had seen accused No. 3 prior to the said incident and that point also was going against the prosecution case. 14. Shri Gole further submitted that the prosecution witnesses mentioned above had seen accused No. 3 prior to the said incident and that point also was going against the prosecution case. 14. Shri Gole submitted that the recovery of the currency notes from the possession of accused No. 3 in pursuance of the information given by him is also not sufficient to prove the prosecution case because the evidence on that point is totally devoid of any substance. Apart from that, he submitted that the prosecuted has not proved the nexus between the currency notes which were given by the Cashier of Bank of Baroda, Bhandup Branch to P.W. 1 and 2 and the crime vis-a-vis accused No. 3. Thus, he submitted that accused No. 3 be also acquitted by setting aside the conviction and sentence which has been passed against him by the learned trial Judge. 15. Shri Singhal, learned Public Prosecutor, submitted by making reference to the evidence on record that prosecution evidence is above board and the criticism which has been levelled by the Counsel appearing for the accused deserves to be dismissed and the judgment and order passed by the learned trial Judge convicting and sentencing the accused-appellants needs to be confirmed. Shri Singhal submitted that the identification parade is free from any infirmity and the officer conducting the said identification parade has followed the instructions given by the High Court necessary for conducting identification parades. He pointed out the identification parade was held in a different hall which was not part and parcel of the premises of Bhandup Police Station. He pointed out that there was absolutely no interference from the Police Officers of Bhandup Police Station and, therefore, there cannot be any grievance from the side of the accused in respect of the legality of identification parade. Shri Singhal submitted that the test identification parade in the said identification parade has been confirmed when the relevant witnesses identified the concerned accused in the Court when they were giving evidence on oath. 16. Shri Singhal submitted that the prosecution witnesses 1 to 16 were having sufficient time and opportunity of observing features of the accused who have been convicted and who are challenging the order of conviction and sentence. 16. Shri Singhal submitted that the prosecution witnesses 1 to 16 were having sufficient time and opportunity of observing features of the accused who have been convicted and who are challenging the order of conviction and sentence. It is his submission that the nearness of the accused to the relevant witnesses was sufficient enough to give them opportunity of remembering the faces of the concerned accused and the identification parade has been held immediately after the incident and, therefore, the prosecution has established that the accused who have been convicted were the culprits. 17. Shri Singhal further submitted that evidence in respect of the information disclosed by the accused convicted, is satisfactory and inspiring confidence and the learned Judge has rightly accepted it for basing the conviction. He submitted that in pursuance of the information given by the concerned accused, the bags were discovered, the fact that currency notes were kept in it was discovered and those currency notes have been identified by Madhav Patankar (P.W. 14) who was the cashier of the said Branch who had given those currency notes to P.W. 1 and 2. Shri Singhal submitted that these two implicating circumstances prove the guilt of the accused beyond reasonable doubt and, therefore, these appeals need to be dismissed. 18. Much has been submitted by the defence as well as the prosecution on identification of culprits as accused. Therefore, it would be proper to mention in a narrative form the witnesses who identified the accused and in what context seized the weapons were alleged to have been possessed by the respective accused. P.W. 17 had identified the accused Nos. 4 and 5. However, the other accused have been identified by P.W. 1 and 2 as well as P.W. 16. P.W. 1 and 2 identified accused except accused Nos. 4 and 5 as the persons who were involved in the activities of restraining them by holding them up at the points of weapons possessed by them. They identified accused No. 6 Manohar Vishram Rawanak as the person snatching out the bag from the hands of P.W. 2 in the same main activity of alleged dacoity. P.W. 16 identified accused Nos. 4 and 5 as the persons who helped him when he was proceeding by the road near the spot of alleged incident. They identified accused No. 6 Manohar Vishram Rawanak as the person snatching out the bag from the hands of P.W. 2 in the same main activity of alleged dacoity. P.W. 16 identified accused Nos. 4 and 5 as the persons who helped him when he was proceeding by the road near the spot of alleged incident. According to him, they were possessing the knives, and at the point of knives they restrained him and took the care that he would not help P.W. 1 and 2. 19. As per the prosecution evidence adduced in support of the charge levelled against the accused, two pistols, one knife and cartridges were recovered from accused No. 7 Pandurang Sitaram Padiyar. 20. It would be necessary to mention the amount which is alleged to have been seized from the possession of respective accused. The currency notes of Rs. 46,750/- were seized at the instance of accused No. 3 Sanjay Gaikwad. Out of them, the currency notes of Rs. 25,000/- were seized from his house and Rs. 21,750/- from the house of his friend which was indicated by Sanjay Gaikwad when he gave the information in that context to the Investigating Officer and panch witnesses and led them to the said house and got the said bag from his friend which was containing the currency notes of Rs. 21,750/-. Along with the currency notes which were found from his house in the bag which was to the tune of Rs. 25,000/-, a golden ring and chain were also seized. Rs. 9,740/- were recovered from the bag which was in the house of accused No. 4 Shailesh Patil. A knife was also recovered at the instance of the said accused. Rs. 26,930/- were recovered at the instance of accused No. 5 Babu Malvankar from a bag which was kept in his house. Rs. 76,210/- were recovered at the instance of accused No. 6 Manohar Rawanak. Rs. 26,135/- + Rs. 5,000/- were recovered at the instance of accused No. 7 Pandurang Kadiyar from his house kept in a bag. Rs. 34,800/- were recovered at the instance of accused No. 8. Dilip Dhuri. Rs. 44,105/- were recovered at the instance of accused No. 9 Kamlakar Nemane. In this context, the prosecution adduced the evidence of panch witness P.W. 17 and the Investigating Officer (P.W. 19). 21. P.W. 1 identified accused Nos. Rs. 34,800/- were recovered at the instance of accused No. 8. Dilip Dhuri. Rs. 44,105/- were recovered at the instance of accused No. 9 Kamlakar Nemane. In this context, the prosecution adduced the evidence of panch witness P.W. 17 and the Investigating Officer (P.W. 19). 21. P.W. 1 identified accused Nos. 3, 6, 7, 8 and 9 in test identification parade and before the trial Court. P.W. 2 identified accused Nos. 1, 3, 6, 7 and 9 in test identification parade and before the trial Court. 22. Shri Gole, Counsel appearing for the accused No. 3, vehemently criticised the evidence in respect of the test identification parade. He submitted mainly that the test identification parade was held in a hall which was in the premises of Bhandup Police Station. It is his objection that the dummies were not properly selected and in accordance with the guidelines given by the High Court. He also criticised the way in which the dummies were already made available to the Special Executive Magistrate (P.W. 5) and that vitiated the credibility of the test identification parade. The same has been reiterated by S/Shri Gavankar and Warunjikar, Advocates appearing for accused Nos. 4 and 5. 23. Shri Gole placed reliance on the judgment of the Division Bench of this Court in the matter of Ramchandran B. Gupta v. State of Maharashtra, reported in 1995 Cri.L.J. 4048 wherein it has been held by the Division Bench 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. To ensure that firstly, the prosecution has to adduce link evidence to the effect that right from the time of arrest till being lodged in jail, the faces of suspects were kept veiled and no one had the opportunity to see them. Secondly though direct evidence may not be available accused may discharge his burden showing, for example that he and the witnesses were present in the Police Station at the same time. Further, the Division Bench of this Court held in the said matter “the practice of conducting identification at Police Station (which is prevalent in Greater Bombay) has to be strongly deprecated. Further, the Division Bench of this Court held in the said matter “the practice of conducting identification at Police Station (which is prevalent in Greater Bombay) has to be strongly deprecated. The sooner it is abandoned the better it is because, the probability of the suspects being shown to the witnesses prior to the test identification is always there at the Police Station. At any rate, on account of such a practice, there is always a lurking suspicion in the mind of the Court that the witnesses might have seen the suspects prior to the test identification. In order to make identification evidence beyond reproach the identification parades should instead be held in jail. It also indicated that not more than two suspects at a time should be kept in one parade for identification”. Shri Gole while placing reliance on these observations of this Court had submitted that the strength of prosecution case by evidence of P.W. 5 has been totally vanished. However, Shri Singhal, Public Prosecutor submitted that there is absolutely no material on record to show that the identifying witnesses had the opportunity to see the faces of the accused prior to the test identification parade. He submitted that the said hall was not in the premises of Bhandup Police Station and there was no substantial deviation from precautions to be taken before holding the identification parade in legal way. He submitted that the identification parade has been properly held. Shri Gole submitted that there was a sticking plaster affixed on the face of accused No. 3 which was a sufficient clue to the witness to identify him. Shri Singhal pointed out that precaution was taken to conceal the scar which was on the face of accused No. 3 and, therefore, that sticking plaster was applied on his face. He justified the said action by submitting that all attempts were made by the P.W. 5 Special Executive Magistrate for avoiding the possibility of the said accused being identified on account of scar. 24. I dismiss the submissions advanced on behalf of the defence on this point because for the purpose of demonstrating that the identification parade was vitiated on account of illegalities, there has to be some material present in the evidence. 24. I dismiss the submissions advanced on behalf of the defence on this point because for the purpose of demonstrating that the identification parade was vitiated on account of illegalities, there has to be some material present in the evidence. That is to be brought forth either by cross-examination which is the strong weapon in the hands of defence or by adducing independent evidence in that context. It is pertinent to note here in the present case that some of the accused went on examining evidence in defence. When that was the attitude of the co-accused, it was necessary for accused No. 3 to bring such material on record through cross-examination of relevant witnesses or to adduce evidence by examining the necessary defence witnesses. 25. The evidence on record clearly shows that the said hall was at sufficient distance from the building where Bhandup Police Station was situated. Though the dummies were there and available to P.W. 5 who held the identification parade, they were not selected by him specially. There is no material available in the evidence to come to the conclusion that identifying witnesses were having opportunity of seeing the faces of those dummies or the accused. It is pertinent to note that the material which was available for the Division Court to draw the conclusions as it has been indicated by the judgment quoted supra is not available in the present case. The test identification parade in the present matter has been held in the year 1990. In the case which was being dealt with by the Division Court, the evidence was showing that the officer holding the identification parade was not even aware of the guidelines given by the High Court for holding the identification parade. In that context, those observations have been made by the Division Court. It is important to note that the conclusions which are to be drawn, always depend on the set of facts and circumstances of each case. There cannot be general rule. 26. In that context, those observations have been made by the Division Court. It is important to note that the conclusions which are to be drawn, always depend on the set of facts and circumstances of each case. There cannot be general rule. 26. So far as the point of fixing sticking plaster on the face of accused No. 3 is concerned, the defence cannot get the advantage of the points which have been agitated by the Counsel appearing for accused No. 3 because had the officer holding the identification parade not been careful enough to get that sticking plaster affixed on his face, there would have been a grievance from the side of the accused No. 3 that he was identified by witnesses Nos. 1 and 2 on account of the presence of scar on his face. For concealing that scar, when sticking plaster has been affixed, now accused No. 3 is grumbling that on account of the said sticking plaster he has been identified. It means indirectly that he is bent upon on to take advantage of available side of the coin. It is as good as “Head I win, tail you lose”. Such attitude cannot be permitted. 27. The dummies which have been picked up are, according to this Court, sufficient when one witness each time was specifically taken to the parade for enabling him to pick up the suspect whom he wants to identify. The collection of number of dummies by P.W. 5 does not vitiate the identification parade in this case because the bona fides are indicated by the Act of affixing the sticking plaster on the face of accused No. 3 which was meant for the purpose of protecting him from getting identified on account of the presence of this scar on his face. P.W. 5 unfortunately did not notice that that could be also ground of grievance. What more is needed ? When the act is indicating bona fides, irregularities, if any, on small fringes cannot be taken to be sufficient enough for vitiating the evidence of identification parade totally. Thus, it is clear that two witnesses have identified accused No. 3 in the test identification parade though same witnesses have identified him in the Court on oath when their evidence was recorded by the trial Court. Thus, it is clear that two witnesses have identified accused No. 3 in the test identification parade though same witnesses have identified him in the Court on oath when their evidence was recorded by the trial Court. Therefore, there is substantial evidence available in respect of the identification of accused No. 3 as the person who was amongst the culprits who committed the activities when the said incident of looting took place as per the prosecution case. This Court has no hesitation in recording the conclusion that the prosecution has proved it beyond reasonable doubt that accused No. 3 has been identified as the person culprit participating in the said act of looting P.W. 1 and 2 of the cash to the tune of Rs. 3 lakhs so far as the evidence of identification of the accused is concerned. 28. The said identification is coupled with the seizure of the amount of Rs. 46,750/-. Out of them, Rs. 25,000/- have been seized from the bag which was kept in his house which was discovered in pursuance of the information given by him before the panch witnesses and the Investigating Officer. Shri Singhal submitted that the evidence in respect of the seizure of the said amount at the instance of accused No. 3 is an incriminating circumstance proving the guilt of the said accused on his own. Shri Gole disagreed with him. I uphold the submission of Shri Gole on this point because the seizure of the said amount by itself is not sufficient to prove the guilt of the accused and the participation in the said act of looting in this case because the learned trial Court did not put a very important incriminating circumstance to the accused when he was examined under the provisions of section 313 of the Criminal Procedure Code, 1973 (hereinafter referred to as 'the Code' for convenience). The Supreme Court observed in the matter of (Shivaji Sahebrao Bobade and another v. State of Maharashtra)2, reported in A.I.R. 1973 S.C. 2622 wherein the Supreme Court held that “it is trite law, nevertheless fundamental, that the prisoner's attention should be draw to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. This is the basic fairness of a criminal trial and failures in this area gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred, it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the Appellate Court to call upon the Counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the Appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial Court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with section 342 Cri.P.C. (of 1898) the omission has not been shown to have caused prejudice to the accused. Great care is expected of Sessions Judges who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial Judge may be a little faged out”. 29. It would be necessary to quote section 313 of the Code for appropriate reference in the context of the point which is being appreciated by process of discussion followed by the process of scanning. Section 313 of the Code reads as under :- “313. 29. It would be necessary to quote section 313 of the Code for appropriate reference in the context of the point which is being appreciated by process of discussion followed by the process of scanning. Section 313 of the Code reads as under :- “313. Power to examine the accused.---(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court--- (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case.” Sub-section (3) provides that the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. Sub-section (4) also provides that the answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. 30. This Court has made it a point to quote the said provisions of the law in context with the observations made by the Supreme Court in Shivaji Sahebrao Bobde's case (supra) because the general trend unfortunately is to put up evidence of witness as it is without taking the trouble of scanning out as to what is the circumstance inculpatory against the accused. It is the bounden duty of the Criminal Courts to take out the inculpatory portion from the evidence of witness or witnesses and to put up it in more systematised manner to the accused to enable him to understand it in its proper perspective. The common trend of putting sentences from the testimony of witnesses from the evidence of prosecution as they are, by dissecting them in convenient way, to the accused when the accused are being examined in a criminal trial in view of the provisions of section 313 of the Code. It does not carry the flag of administration of justice to its appropriate goal and end in view of the spirit of the enactment. The possibility of accused getting confused by such sentences and not understanding the exact import of inculpatoriness indicated by it. It does not carry the flag of administration of justice to its appropriate goal and end in view of the spirit of the enactment. The possibility of accused getting confused by such sentences and not understanding the exact import of inculpatoriness indicated by it. It is necessary for criminal courts to keep in mind carefully that the accused are generally from the strata of the society which is not expected to know the nicities of the law and legal procedure by the help of which the trial are conducted in Criminal Courts. They should be given to understand that a particular inculpatory circumstances has been brought to surface by the prosecution by examining the necessary witness or witnesses. When that comes in the shape of substantive evidence, then it becomes a fundamental right of the accused to know that in exact spirit. Otherwise, the accused gets baffled and cannot offer explanation which may have been eager to come out of his mind. The courts are meant for administration of justice in proper spirit of the law enacted and the jurisprudence prevalent. If this is not done, it is likely to damage either the accused or the prosecution. In this case, the Counsel appearing for the accused Nos. 3, 4 and 5 have strongly contended that had the questions in respect of possession of currency notes been properly framed and had an opportunity been given to those accused, they would have offered appropriate explanations explaining the possession of currency notes of the sums indicated above. Though Shri Singhal attempted his best, was unable to carry out the point which he was canvassing in favour of the prosecution. In this case, the losing party is the prosecution because when that inculpatory circumstances has not been put to the accused when they were examined in view of the provisions of section 313 of the Code, that cannot be used against the respective accused for basing the conviction against them. It has to be taken out from consideration when this Court is judging the innocence or guilt of the accused. Therefore, the submission advanced by Shri Singhal for prosecution that the possession of the sum by the accused No. 3 ipso facto is sufficient enough to warrant conviction against him will have to be eliminated, as it cannot be treated to be mere irregularity. Therefore, the submission advanced by Shri Singhal for prosecution that the possession of the sum by the accused No. 3 ipso facto is sufficient enough to warrant conviction against him will have to be eliminated, as it cannot be treated to be mere irregularity. It would be a different question as to what inference should be drawn on account of possession of such amount. It would be a totally different aspect. 31. Now this Court comes to another aspect of the prosecution evidence brought forth against the accused No. 3 and that is seizure of a knife from the possession of accused No. 3. 32. This Court would be adverting its attention towards a point whether the evidence of P.W. 1 and 2 identifying accused No. 3 as the culprit participating in the said activities which the prosecution has described as the activity meant for looting P.W. 1 and 2. In this context, the question which would be relevant for consideration would be whether those witnesses were having sufficient opportunity of identifying those accused as the culprit or not. Whether those witnesses were at sufficient distance to see the features of those accused. Whether those witnesses were having sufficient time and coolness of mind to observe the features of accused so as to enable them to identify him as the culprit in the test identification parade and thereafter in the Court when those witnesses were examined. As per the prosecution case, immediately after the said bag was given by P.W. 1 to P.W. 2, accused No. 3 along with other accused, viz. accused Nos. 2, 6, 7, 8 and 9 appeared on the spot holding different weapons and putting those two witnesses under threat. Thereafter accused No. 6 Rawanak took out the bag from the hands of P.W. 2. It is pertinent to note at this juncture that these two witnesses were accosted in such way and as those two persons were in possession of a bag containing the amount, they must have been in natural course of human behaviour pertinent to know as to who were the persons accosting them. Therefore, their attention must have been focussed to the persons who were holding them and were busy in snatching out the bag from the P.W. 2 and were engaged in holding the weapons for the purpose of facilitating the activities. Therefore, their attention must have been focussed to the persons who were holding them and were busy in snatching out the bag from the P.W. 2 and were engaged in holding the weapons for the purpose of facilitating the activities. There is nothing in the evidence to show that at that time they were frightened and there is nothing on record to show that they were baffled and had lost the balance of the mind. This incident was the incident of day light which was enabling these witnesses to have full view of accused No. 3 and that too with full attention of the mind and too diverting to him. The identification parade as it has been pointed out in the above paragraphs a valid one and the evidence adduced by the witnesses against this accused on the point of identification is not shattered, all these things assume importance. 33. When there is no evidence on record to show that these prosecution witnesses had the previous opportunity of seeing the face of the accused prior to identification parades and there is no evidence on record to show that these persons were having axes to grind against these accused, and as the evidence of these witnesses is not suffering from infirmity, this Court has no hesitation in confirming the finding of the trial Court in respect of the conclusion that by virtue of evidence of these two witnesses, the prosecution has proved that this accused was amongst the culprit who were engaged in the said acts of looting P.W. 1 and 2 of the currency notes worth Rs. 3 lakhs which they had got from Bhandup Branch of Bank of Baroda from the hands of P.W. 14 Madhav Patankar. 34. At this juncture, this Court would find it necessary to advert its attention towards the evidence of P.W. 16 who said that he was able to identify accused No. 3 as the person who was engaged in holding up P.W. 1 and 2 when accused No. 6 Rawanak snatched out the bag containing the said currency notes. The distance between P.W. 16 and P.W. 1 and 2 was of about 40 feet. This distance is the significant distance. In context with further circumstances which were showing that this witness was himself engaged in the activities as victim in which were alleged to have been done by accused Nos. The distance between P.W. 16 and P.W. 1 and 2 was of about 40 feet. This distance is the significant distance. In context with further circumstances which were showing that this witness was himself engaged in the activities as victim in which were alleged to have been done by accused Nos. 4 and 5 who were also holding him so as to prevent him as per the prosecution case for helping P.W. 1 and 2. As a matter of natural corollary, this witness was concentrating on his safety and was altogether interested in seeing that he should not be injured by accused Nos. 4 and 5 or some persons who were holding him at the tips of the weapons. Therefore, when his attention was adverted to those persons, how he would have been in all probabilities able to concentrate his attention in viewing the features of the persons who were dealing with P.W. 1 and 2 at the distance of 40 feet ? Furthermore, it has come in his evidence, in the cross-examination that he was frightened at that time. When a person is frightened and caught in such circumstances as a matter of natural corollary he will have to be taken to be in baffled state of mind and could not have been in coolness of the mind to observe the features of the concerned persons and to store it in his memory so as to enable him to identify the said persons later on in the test identification parade or in the Court. Therefore, this Court discards the evidence of P.W. 16 in respect of identification of accused No. 3 as the person who was engaged in the activities of looting P.W. 1 2 after overall discussion of the evidence on record on these points. 35. When in a daylight incident the prosecution witnesses have directly identified the accused as culprit and when the trial Court has recorded a finding of guilt against such accused, it would bear the importance when this Court is deciding the criminal appeal filed by the accused of concerned accused. 36. 35. When in a daylight incident the prosecution witnesses have directly identified the accused as culprit and when the trial Court has recorded a finding of guilt against such accused, it would bear the importance when this Court is deciding the criminal appeal filed by the accused of concerned accused. 36. In this context, it would be proper to deal with the initial objection raised by the prosecution which was intending to put fetters on the jurisdiction of this Court in appreciating the evidence independently and to draw the conclusion independently which were not pertaining to the stand taken by the accused in the trial Court. The learned Public Prosecutor attempted to submit that this Court should not independently appreciate the evidence on record and should not draw conclusion independently. This Court is unable to agree with those submissions advanced on behalf of the prosecution because it is not correct. This Court is the final Court of the facts and therefore this court has to assess the evidence independently and has to draw the conclusions which are necessarily surfacing through the process meant for appreciation of the evidence. If that is not done, there would be resultant failure of the administration of justice resulting in its miscarriage. Therefore, this objection has to be dismissed. 37. Thus this Court confirms the finding of the trial Court holding accused No. 3 guilty of the activities which were meant for looting P.W. 1 and 2 of the said cash amount along with some other accused with whom this Court would be dealing in further portion of this judgment. 38. P.W. 1 and 2 have identified other accused as the culprits participating in the said activities of looting. They are accused Nos. 2, 6, 7, 8 and 9. As per the prosecution evidence, accused No. 6 Vishram Rawanak snatched away the bag which was containing currency notes and was opposed by P.W. 2. P.W. 1 identified accused Nos. 3, 6, 7, 8 and 9 in test identification parade and before the trial Court. Out of them, accused No. 1 has been already acquitted by the trial Court. It is pertinent to note that P.W. 1 has identified accused No. 8. P.W. 1 identified accused Nos. 3, 6, 7, 8 and 9 in test identification parade and before the trial Court. Out of them, accused No. 1 has been already acquitted by the trial Court. It is pertinent to note that P.W. 1 has identified accused No. 8. All these accused were the persons who were holding P.W. 1 and 2 and engaged in giving threats and facilitating accused No. 6 Rawanak in snatching out the bag containing the currency notes from the possession of P.W. 2. Their activities were such which were part and parcel of the object of looting P.W. 2 by snatching away the bag containing currency notes from him. In the abovementioned paragraphs this Court has come to the conclusion that the evidence in respect of identification of these accused by P.W. 1 and 2 has not been shattered and is reliable and is providing them to be the persons participating in the said activities. Therefore, it will have to be concluded that all of them were together for the purpose of doing various activities which were meant for snatching out the V.I.P. bag which P.W. 2 was holding and in which currency notes were kept. Thus, they are proved to be the persons doing the important portion of the said campaign and activities. 39. The Prosecutor, Shri Singhal submitted that various amounts have been found in their possession. But as pointed out in the above concerned paragraphs as important inculpatory circumstance has not been put to the accused which was brought forth the prosecution through the mouth of prosecution witness No. 14 Madhav Patankar. This Court would be dealing with it. The learned Prosecutor submitted that the said currency notices have been identified to have been given by P.W. 14 Madhav Patankar to P.W. 1 who thereafter gave it to P.W. 2 and were kept in the said V.I.P. bag which was snatched out by accused No. 6 Rawanak. Shri Singhal pointed out that those currency notes were in separate bundles and the said separate bundles were containing currency notes of particular denomination and the said bundles were having seals which were signed by P.W. 14 Madhav Patankar and at two places those bundles were stapled with pins. Shri Singhal pointed out that those currency notes were in separate bundles and the said separate bundles were containing currency notes of particular denomination and the said bundles were having seals which were signed by P.W. 14 Madhav Patankar and at two places those bundles were stapled with pins. This important circumstance was not put by the learned trial Judge to the accused No. 3 as well as this accused and therefore they were prevented from offering their explanation. It is true that this Court is empowered to ask the explanation from the Advocate appearing for them if it is necessary. But that would come in play only if the prosecution is in possession of acceptable evidence against those accused sufficient enough to hold them guilty of the charge which has been levelled against them otherwise. This part of the evidence of prosecution has been tainted with infirmity that these currency notes were not put to test identification of articles as required by law by mixing them with similar type of bundles and asking P.W. 14 Madhav Patankar to identify them by virtue of his signature and specially stapling of the pin over it at two places. It is further tainted with the infirmity that the said currency notes are stapled at only one place. Therefore, these currency notes though may be in huge amount, they are not having any concern whatsoever with the present prosecution and the guilt of accused. The concerned person would be having an appropriate remedy which is permitted by law approaching by Civil Court. This Court discards it from consideration in the process of adjudicating guilt or innocence of these accused. 40. Thus, what remains is to be considered is whether the evidence of identification of P.W. 1 and 2 and brought for proving them as the culprits who were engaged in the activities which were meant for looting them of the said amount. At this juncture, as coupled circumstance it would be necessary to consider the submissions advanced by Shri Singhal on behalf of the prosecution. 41. Shri Singhal submitted that these currency notes have been seized by the investigating machinery in pursuance of the information given by this accused which was in context with the provisions of section 27 of the Indian Evidence Act, 1872 (hereinafter referred to a the Indian Evidence Act for convenience). 41. Shri Singhal submitted that these currency notes have been seized by the investigating machinery in pursuance of the information given by this accused which was in context with the provisions of section 27 of the Indian Evidence Act, 1872 (hereinafter referred to a the Indian Evidence Act for convenience). Section 27 reads “Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It is a deviation from the law indicated by the provisions of sections 24, 25 and 26 of the Indian Evidence Act which prohibits proof of confession made by the accused during police custody. The exact import of the spirit of the provisions of section 27 which is deviation from section 26 of Evidence Act is to find out as to what fact has been discovered in pursuance of the information given by the accused who happens to be in custody of Polic Officer. The section has provided a restriction indicating that much of information only may be proved which relates distinctly to the fact discovered in pursuance of the information given by the accused who happens to be connected with a crime or happens to be in the custody of police and it further requires that the fact has to be discovered in consequence of the information received from a person accused of any offence and in the custody of Police Officer. Therefore, the total meaning indicated by it is that the prosecution is entitled to prove that the accused is having the knowledge of a fact that certain incriminating article has been concealed in particular place which is not accessible to all and sundries and not in the knowledge of sundries. It also indicates that the prosecution is entitled to prove that such accused only is having the knowledge of existence of such incriminating article being concealed in such a place which happens not accessible to others and which is not within the knowledge of all and sundries. It also indicates that the prosecution is entitled to prove that such accused only is having the knowledge of existence of such incriminating article being concealed in such a place which happens not accessible to others and which is not within the knowledge of all and sundries. True, that prosecution has adduced the evidence to show that the fact that some currency notes were kept in bags and those bags were kept in concealed way in the houses of some of the accused mentioned above or their friends was within the knowledge of the concerned accused and the said fact was discovered in pursuance of the information given by them. But by itself it would not help the prosecution to achieve the goal of obtaining for conviction against these accused on this solitary ground because those bags were found to be in the house of the concerned accused or their concerned friends. They might have been kept in the bags. But in this case, the prosecution was obliged to prove the nexus between those currency notes and the crime in question. In that context, the prosecution has been left with the evidence of identification of concerned accused by P.W. 1 and 2 as the said culprits were engaged in the activities meant for robbing P.W. 1 and 2 of the said currency notes kept in the said V.I.P. bag. 42. Therefore, leaving aside this portion of the prosecution evidence this Court would come to a conclusion that the evidence of identification by P.W. 1 and 2 identifying them as the culprits engaged in the activities meant for robbing P.W. 1 and 2 of the said amount and doing activities which were around both of these two witnesses at the time of the said incident is believable. 43. Further, the consequential question would be as to what offence has been committed by them but this Court would be dealing with it after dealing with the case of accused Nos. 4 and 5 for the purpose of marshalling out the evidence qua the prosecution case relating to the involvement of accused Nos. 4 and 5 in the commission of those activities. 44. The prosecution has adduced evidence to show that in pursuance of the information disclosed by accused Nos. 4 and 5 for the purpose of marshalling out the evidence qua the prosecution case relating to the involvement of accused Nos. 4 and 5 in the commission of those activities. 44. The prosecution has adduced evidence to show that in pursuance of the information disclosed by accused Nos. 4 and 5 before the panch witnesses and the Investigating Officer, the currency notes kept in the bags were found from their houses and the houses of their friends. The currency notes to the tune of Rs. 9,740/- and the knife was found kept in a bag from the house of accused No. 4. Currency notes to the tune of Rs. 26,930/- were found to have been kept in a bag from the house of accused No. 5 Babu Malwankar. It is true that the said bags and currency notes were found to have been discovered from their house, may be in concealed way. They have not given any explanation about the possession of those currency notes but their grievance is that this inculpatory circumstances was not put to them when they were examined in view of section 313 of the Code. On account of the failure of the trial Court to put these inculpatory circumstances to them, this Court would not be using those circumstances against them for holding them guilty of the charge levelled against them because these currency notes are bound to be kept in either cupboard or in a bag or in a secret place because the person possessing or owning it would be interested in seeing that it is not taken or stolen away by the stranger. It is a normal human conduct and therefore finding all these bags from their houses in the cupboard or in the bags would not by itself be a circumstances holding them guilty. Then again it will have to be tested whether they are unable to offer the explanation or not. Explanation would be expected only if the prosecution is able to prove that they are liable to give explanation of possession on other proved facts proving their involvement in alleged crime. For that purpose, the prosecution is obliged to prove that they were the persons engaged in the activities which were meant for looting P.W. 1 and 2 at the relevant time. 45. So far as these accused are concerned, the prosecution has examined P.W. 16 Shri Sonawane. For that purpose, the prosecution is obliged to prove that they were the persons engaged in the activities which were meant for looting P.W. 1 and 2 at the relevant time. 45. So far as these accused are concerned, the prosecution has examined P.W. 16 Shri Sonawane. It is his evidence that he was passing through the road nearby the spot of said incident and at the distance of about 40 feet away from P.W. 1 and 2. It is his evidence that he was held up by accused Nos. 4 and 5 and another accused. These accused were holding the weapons. But it is important to note that P.W. 16 Sonawane has also stated in his evidence that he was looking towards P.W. 1 and 2. It has also come in his evidence that he was frightened. The word 'frightened' shows that he must have been in confused state of mind influenced by the feeling of fear. Therefore, he must not be having the coolness of mind to visualise the features of those two persons as accused Nos. 4 and 5 neatly and to keep it neatly in his memory. Apart from that, as he stated that he was looking towards P.W. 1 and 2 also shows that his attention was diverted and that brings the point of bewilderedness on account of such diversion of attention. The incident must have lasted few minutes. Therefore, taking into consideration this state of mind of this witness, his identification would not be sufficient by itself to hold these two persons guilty of the offence of which they faced the trial. 46. Besides that, accused Nos. 4 and 5 are taking advantage of the evidence of defence witnesses Nos. 1 and 2 Mr. Rajeshirke and Gurav as well as the muster roll which was kept in official course of the business of the office of the Prothonotary Senior Master of this High Court. The said Muster roll bears the signature of accused No. 4 pertaining to the date of 10th May, 1990 and of accused No. 5 also so far as that date is concerned. There is an eraser so far as the date 11-5-90 is concerned but the Counsel appearing for accused No. 5, Shri Warunjikar submitted that the said signature was put by accused No. 5 erroneously and when the said mistake was noticed, it was scored. There is an eraser so far as the date 11-5-90 is concerned but the Counsel appearing for accused No. 5, Shri Warunjikar submitted that the said signature was put by accused No. 5 erroneously and when the said mistake was noticed, it was scored. The evidence of these two witnesses show that the said muster roll is kept in the office of the Prothonotary Senior Master in regular course of business and hamals employed in the High Court are required to put the signatures on that muster roll as a matter of their duty. They have to sign it at 10.30 a.m. or some minutes prior to that, may be at about 10.15 a.m. Shri Gavankar and Warunjikar submitted that when they had put the signatures on the said Muster roll at 10.15 or 10.30 a.m. in the office of the Prothonotary of High Court of Judicature at Bombay which is situated in the Fort area of Greater Bombay, how they could go to Bhandup where the incident alleged to have been taken place as per the prosecution case. They had also submitted that had they been present at the spot of the incident at 10.15 a.m. as per the prosecution case how they could have come to the High Court by crossing such a long distance and could have been able to put their signatures on the Muster roll. Both the Advocates submitted that D.W. 2 Anant Gurav happens to be Naik working at the relevant time and was in charge of and having the custody of the said muster roll and was duty bound to put it in the office of the Prothonotary Senior Master of Bombay High Court. They submitted that this evidence proves the defence of alibi put forth by these two accused. Shri Singhal, Public Prosecutor, submitted that the said evidence is not sufficient enough to prove alibi of these accused and the trial Court rightly discarded this plea of those accused. 47. Shri Singhal pointed out that the learned trial Court has categorically discussed this aspect of the defence evidence and has rightly placed reliance on the statement of D.W. 2 Gurav that after 10.30 a.m. he did not see both the accused persons in the premises of the Bombay High Court. 47. Shri Singhal pointed out that the learned trial Court has categorically discussed this aspect of the defence evidence and has rightly placed reliance on the statement of D.W. 2 Gurav that after 10.30 a.m. he did not see both the accused persons in the premises of the Bombay High Court. The learned trial Judge lost sight of the important aspect of the normal course of the human behaviour and the purposes of the activities of the persons employed in public offices having big premises. Undisputably, the premises of the Bombay High Court is significantly large. It has come in the evidence of D.W. 2 Gurav that at 10.30 a.m. he was present in the office of the Prothonotary and Senior Master, High Court, Bombay. He might have been also sitting at the outer bench of the office or may have been present inside the office. Taking both the cases into consideration, it is not possible for him to see the persons who must have been moving in the premises of the Bombay High Court building at the relevant time at other places on account of work assigned to them. After signing the said muster those hamals might have gone to other places for the purpose of attending their duty and that might have not been noticed by D.W. 2 Gurav. The solitary statement of D.W. 2 Gurav would not be destroying the evidence brought forth for proving alibi by accused Nos. 4 and 5. Alarmingly tendency is growing up of not giving importance to defence evidence and discarding it without giving due attention and without putting it to careful scrutiny. The evidence of defence witnesses is equally important qua prosecution evidence. This approach is totally improper. Both the prosecution evidence and defence evidence stand on the same footing and has to be appreciated in the same fashion and same manner. Needless to point out that the burden which is on the shoulder of the prosecution is stricter than the burden which is on the shoulder of the accused to prove special plea. In some cases, it may to the extent of “ponderance of probability” and in some cases it may be “to the point of truth”. It is to be noted that the burden which is on the shoulder of the accused is lighter than the burden which is on the shoulder of the prosecution. In some cases, it may to the extent of “ponderance of probability” and in some cases it may be “to the point of truth”. It is to be noted that the burden which is on the shoulder of the accused is lighter than the burden which is on the shoulder of the prosecution. In cases where there has been a presumption provided by the legal enactment, the burden is “rebuttable”. The extent may vary but it is always lesser than the burden which is on the shoulder of the prosecution in criminal cases. 48. This Court discarded the evidence of P.W. 16 in respect of the identification of these two accused as the culprits who were engaged in the activities which were around P.W. 1 and 2 at the relevant time. This Court has also discarded the evidence in respect of complicity of these accused in the crime on account of seizure of the said amount from their houses at their instance. What remains in that context is the fact that these currency notes were kept in bags in their houses or the houses of their friends stands discovered and so far as this case is concerned. 49. Therefore, this Court comes to the conclusion that the learned trial Judge committed the error in holding them guilty of the activities which were committed by some persons who were around P.W. 1 and 2 and were concerned with the act of snatching out the bag which was containing the currency notes to the tune of Rs. 3 lakhs. The trial Court should have acquitted them believing the evidence of defence witnesses and keeping in view the infirmities which are present in the prosecution evidence. It has to be remembered that the Supreme Court has said in the judgment of Shivaji Bobde's case (supra) that guilt must be and not merely may be proved because there is mental distance between “may be” and “must be” and that deviates the conjectures from sure conclusions. As indicated by the Supreme Court in the same judgment, when the prosecution is dependent on the solitary testimony of a witness, his evidence should be sound and should be unimpeachable. 50. As indicated by the Supreme Court in the same judgment, when the prosecution is dependent on the solitary testimony of a witness, his evidence should be sound and should be unimpeachable. 50. Section 391 of the Indian Penal Code provides the definition of “dacoity” by providing that when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”. P.W. 1 has declared accused Nos. 3, 6, 7, 8 and 9 as persons who were engaged in various activities for robbing the said currency notes by snatching the bag from the hands of P.W. 2. P.W. 2 has declared accused Nos. 3, 6, 7 and 9 as culprits doing same activities. It is indicated by the evidence that some of the persons were holding the weapons and out of them accused No. 6 Rawanak snatched out the said bag from the possession of P.W. 2. This Court has found that the evidence of these two witnesses is sufficient enough to conclude that these persons were the persons engaged in the said activities and finally snatching out the said bag from the possession of P.W. 2. It is to be noted at this juncture that the activities which were happening around P.W. 1 and 2 at that time were so connected with each other that they cannot be separated from the final act of snatching out of the said bag from the possession of P.W. 2. Therefore, all the persons will have to be taken to be persons doing the last act of snatching out the said bag containing currency notes to the tune of Rs. 3 lakhs from the possession of P.W. 2. Their activities cannot be separated from each other. The proof of finding of the weapons from them does not acquire so much of significance in view of the evidence of identification of these accused as the culprits. The number of these accused is five. Therefore, the activities committed by them falls within the definition of decoity provided by section 391 of the Indian Penal Code. Therefore, they will have to be held guilty of an offence punishable under section 395 of the Indian Penal Code. The number of these accused is five. Therefore, the activities committed by them falls within the definition of decoity provided by section 391 of the Indian Penal Code. Therefore, they will have to be held guilty of an offence punishable under section 395 of the Indian Penal Code. 51. Section 397 of I.P.C. provides that if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, he is liable to be punished with sentence the imprisonment which shall not be less than seven years. So far as the evidence in the present case is concerned, the prosecution has proved that some of the accused were holding deadly weapons like knives and pistols. They were standing before P.W. 1 and 2 with threatening attitude and in consequence of the acts done by other accused, except accused No. 6, accused No. 6 snatched out the said V.I.P. bag containing the said currency notes from the possession of P.W. 2. In the same incident, injuries were caused to P.W. 2. It means that some other acts as contemplated by the provisions of sections 391 and 397 of I.P.C. have been proved by the prosecution to have been committed by these accused. Therefore, this Court also holds that these accused have committed the offence punishable under section 397 of I.P.C. 52. The offence punishable under section 397 is always coupled with offence which is punishable under section 395 of I.P.C. The trial Court has lost the sight of it and therefore has convicted these accused for the offence punishable under section 397 of I.P.C. simplicitor. That modification is necessary in the interest of justice. 53. Thus, this Court confirms the finding of guilt recorded against accused Nos. 2, 3, 6, 7, 8 and 9 and confirms their conviction for the offence punishable under sections 395 and 397 read with section 395 of I.P.C. This Court endorse with approval the judgment of conviction recorded by the trial Court against these accused qua these sections and the charge revolving around these sections levelled against these accused. 54. At this juncture, this Court heard Shri Gole for accused No. 3 on the point of sentence. 54. At this juncture, this Court heard Shri Gole for accused No. 3 on the point of sentence. Unfortunately, Shri Shetye, who has been appointed to defend these accused in concerned appeal and accused at the cost of State expenditure, is not present to argue this appeal for him. An appropriate note be taken in respect of this while considering his appointment for such work. In the interest of justice, this Court has heard Shri Singhal, Public Prosecutor on the point of sentence. Shri Singhal happens to be the Public Prosecutor. 55. Shri Gole submitted that accused No. 3 has undergone a substantial portion of the sentence of rigorous imprisonment and, therefore, that be treated to be sufficient enough to meet the ends of justice. He further submitted that he has lost his job. In view of these circumstances, the sentence be reduced to one which has been undergone by him. Shri Singhal submitted that sentence which has been awarded by the trial Court is sufficient to meet the ends of justice. Therefore, there is no scope of reduction in it or modification. He took care of making the submissions in respect of the sentences awarded to the accused who have been represented by Mr. Shetye. 56. Though Mr. Shetye was not appearing for other accused, this Court has taken case of looking to their interest also and therefore this Court has examined the evidence on record carefully and in detail. This Court has taken care that no prejudice should be caused to their interest on account of absence of a lawyer who was duly appointed to defend them. 57. After considering the necessary facets of the conviction and sentence, this Court comes to a conclusion that keeping in view the way in which the said dacoity has been committed in daylight, sentence which has been awarded to the accused who have filed appeals and who have been convicted and whose conviction has been confirmed by this Court is sufficient to meet the ends of justice. 58. Therefore, I pass the following order :--- (1) The appeals filed by the original accused Nos. 4 and 5 bearing Appeal Nos. 253 of 1995 and 366 of 1995 are hereby allowed. Order of conviction and sentence passed against them by the trial Court stands hereby set aside and they are acquitted cleanly. 58. Therefore, I pass the following order :--- (1) The appeals filed by the original accused Nos. 4 and 5 bearing Appeal Nos. 253 of 1995 and 366 of 1995 are hereby allowed. Order of conviction and sentence passed against them by the trial Court stands hereby set aside and they are acquitted cleanly. The judgment and order passed by the trial Court in Sessions Case No. 655 of 1990 stands set aside. Their Bail Bonds stands discharged. (2) The appeals preferred by accused Nos. 2, 3, 6, 7 and 9 stand dismissed. They are to undergo the imprisonment inflicted on them pursuant to the order of conviction and sentence passed against them by the trial Court, in appropriate prison according to law. The accused who have been enlarged on bail be arrested by issuing necessary arrest warrants and they be remanded to appropriate prison for undergoing the sentence inflicted on them. Accused so convicted and sentenced are entitled to get set off in sentence in view of section 428 of Criminal Procedure Code, 1973. (3) No interference in respect of the order in the context with disposal of the Muddemal property except the modification that the currency notes stand confiscated and consequentially credited to Government. (4) The office of P.W. No. 1 Security Guard Board, Maharashtra State, Bhandup is entitled to file a civil suit if they find it necessary to do so for the purpose of claiming the currency notes by adducing necessary proof in support of their claim if made, in Civil Court. (5) The amount which has been seized from the possession of accused Nos. 4 and 6 has not been claimed by them and, therefore, this Court will have to pass an order directing that said amount be confiscated and consequentially credited to Government. Those two accused are entitled to file a civil suit for claiming it, by adducing necessary evidence in Civil Court, if such suit is filed. So also Suraksha Rakshak Mandal (Government) is also entitled to file a civil suit for claiming it, if they so desire to do so by adducing necessary evidence in Civil Court in that context. -----