ORDER 18 accused were sent up for trial before the learned IInd Additional Sessions Judge, Belgaum for offences under Sections 399, 395, 397, 398, 120-B and 395 r/w Section 201, IPC and 441, IPC. They were also charged for an offence under Section 108 of the Indian Railways Act; Section 25 of the Arms Act and Section 5 of the Indian Explosives Act for contravention of Rule 113(1) of the Indian Explosives Rules, 1983. After recording evidence the trial Court acquitted 12 accused of all the charges. 6 accused, namely, A-8, A-10, A-11, A-15, A-16 and A-18 were convicted for offences under Sections 395, 397, 399, IPC and under Section 108, Indian Railways Act. The convicts filed an appeal against their conviction and sentence in the High Court. The State also filed an appeal against the acquittal of 12 accused persons. By judgment dated 18th January, 1991, the appeal of the convicts as also of the State were dismissed. The convicts filed two special leave petitions and leave was granted. Five of the convicts filed one appeal while A-8 filed a separate appeal. The State did not pursue the appeal against acquittal of the 12 accused. 2. According to the prosecution story, Angadia Courier Service which has branches at different places including Belgaum and Hubli through its deliverymen PW 3 and PW 6, was carrying various parcels including valuables, gold and silver articles on 19.10.1987 by Mahalaxmi Express Train. The said train at the material time was running between Bangalore and Miraj. On its way to Miraj, it arrived at Hubli station at 3.25 p.m. Both PW 3 and PW 6 were entrusted with valuable parcels at Hubli station and at other places and were travelling in B coach. The articles were intended to be carried to Bombay for delivery. The articles had been packed in two bundles which were placed near one of the entrances in the said coach which was a reserve compartment. A bed-sheet was spread over the bundles and PW 3 was sitting on the bundles while PW 6 was occupying a seat reserved for PW 3 and PW 6. When Mahalaxmi Express Train reached Ghataprabha Railway Station at about 8.47 p.m., accused boarded the train and some of them later on pulled the chain of the train and so the train halted near the telegraph post. When Mahalaxmi Express Train reached Ghataprabha Railway Station at about 8.47 p.m., accused boarded the train and some of them later on pulled the chain of the train and so the train halted near the telegraph post. The accused persons asked PW 3 to remove the bundles kept near the entrance to facilitate them to get down but PW 3 told them to use the other exit door. One of the accused was armed with a revolver and the same was snatched by a co-accused who fired at PW 3. PW 3 was injured. One of the passengers, who had come near the place of occurrence also received an injury. The accused persons removed the articles which were being carried by PW 3 and PW 6 and made good their escape. A case of dacoity was registered. Subsequently, during investigation, the bed-sheet which had been spread over the bundles was recovered and was identified by PW 3 and PW 6. Some of the stolen property was also recovered, allegedly, on information furnished by accused persons under Section 27 of the Evidence Act. Identification parade was held by Tehsildar Bhuttayya, PW 54. Various witnesses were called upon to identify the accused in jail. The proceedings of the identification parade were drawn up and subsequently at the trial, the witnesses were also called upon to identify the accused persons. 3. The learned Sessions Judge disbelieved the evidence relating to recovery of the stolen property on the basis of alleged statements recorded under Section 27 of the Evidence Act and gave various reasons in support of its findings. The High Court found that the view taken by the Sessions Judge was correct and keeping in view the evidence of the Investigating Officer and the Panch witnesses, with regard to recovery of allegedly stolen articles on various dates at the instance of some of the accused as reflected in the Panchnamas, agreed with the reasoning of the Sessions Court that the evidence was not reliable or acceptable. The High Court, accordingly, also did not rely upon recovery evidence. The entire prosecution case, therefore, is based on the identification of accused by various prosecution witnesses. 4. The High Court, accordingly, also did not rely upon recovery evidence. The entire prosecution case, therefore, is based on the identification of accused by various prosecution witnesses. 4. The two star witnesses of the prosecution on whose evidence reliance has been placed both by the Sessions Court as well as the High Court to record conviction against the appellants are PW 3 and PW 6, the two deliverymen of Angadia Courier Service. Both the Sessions Court as well as the High Court rightly found that the fate of the case revolves around the evidence of these two witnesses only regarding identification of the accused made by them. 5. We find from our independent appreciation of the evidence on the record that PW 3 Rasikbhai was one person who had ample opportunity to see the accused. He had entered into a conversation with them when they wanted him to remove the bundles from near the entrance. He was also involved in a quarrel with them and had received an injury by a fire shot during the occurrence. Out of the appellants he had identified, both during the identification parade in the jail as also in the Court A-8, A-10, A-11, A-16 and A-18 as members of the accused party who had committed dacoity. So far as PW 6 is concerned, he was able to identify during the identification parade only appellants A-10, A-15, A-16 and A-18. In the Court also he could identify only these accused and none else. The manner of conducting the identification parade at the jail and the proceedings of the identification parade were drawn up by PW 54 Tehsildar Bhuttayya. Both the Courts have relied upon the testimonies of PW 3, PW 6 and PW 54 to fix the identify of the six convicts i.e. A-8, A-10, A-11, A-15, A-16 and A-18. 6. The evidence given by PW 3 with regard to the identification was appreciated by the trial Court as well as the High Court and we find that the view taken by both the Courts with regard to the identity of appellants is sound and proper. Indeed, PW 6 only identified our appellants but considering the opportunity which he had to see the accused persons, it can be safely said that his identification of these appellants only is understandable in the established facts and circumstances of the case. Indeed, PW 6 only identified our appellants but considering the opportunity which he had to see the accused persons, it can be safely said that his identification of these appellants only is understandable in the established facts and circumstances of the case. Both the witnesses categorically denied the suggestion that photographs of the accused persons had been shown to them either at the Central Jail or at the office of the Tehsildar or at any other time. From the cross-examination of these witnesses, it transpires that nothing has been brought out to shake their credibility or to show as to why they should falsely implicate any of the six appellants. The argument of learned counsel for the appellants that because of delay in conducting the identification parade and the 7-day police remand of the accused persons, identification becomes doubtful, was raised both before the Sessions Court as well as the High Court and rightly rejected. We are not persuaded to take a different view either. 7. In our view, the evidence of PW 3 Rasikbhai is reliable. He had ample opportunity to identify the convicts. From his evidence, however, we find that he did not identify A-15 during the identification parade in the jail and later on in the Court also. Of course, PW 6 has identified A-15 also but in our opinion since PW 3 who had greater opportunity to identify the accused has not identified A-15 either at the parade in the jail or in the court, it would not be safe to uphold conviction of A-15. We, therefore, accept the appeal of A-15 and giving him benefit of a reasonable doubt set aside his conviction and sentence. So far as other appellants are concerned, we see no infirmity in the orders of the trial Court or the High Court. The appreciation of evidence by both the Courts is sound and proper. Their appeals therefore fail and are dismissed. However, while upholding their conviction and sentence, other than that of A-15, for offences under Section 395, IPC, we are of the opinion that, in the established facts and circumstances of this case, conviction of the five appellants for offences under Sections 397, 398, 399 is not warranted. Their conviction and sentence for those offences is, accordingly, set aside. 8. The appellants are on bail. Their bail bonds shall stand cancelled. Their conviction and sentence for those offences is, accordingly, set aside. 8. The appellants are on bail. Their bail bonds shall stand cancelled. They shall be taken into custody to undergo remaining part of their sentence. SLP (Crl.) No. 1239/1992 : 9. In view of the orders made in Criminal Appeal Nos. 682-684 of 1992, this special leave petition also stands dismissed. (N.K.R.) Appeal of A15 allowed and of Rest dismissed accordingly. *************** Parallel Citations of other Journals : Suratkhan Abdul Rahiman & Anr. v. State of Karnataka, 2001(5) Supreme 680 : 2001 (3) Crimes 486 00028