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Andhra High Court · body

2002 DIGILAW 1330 (AP)

GALI HANOOK v. State Of A. P.

2002-11-14

T.CH.SURYA RAO

body2002
T. SURYA RAO, J. ( 1 ) BOTH these appeals can be disposed of together since they emanate from the same case in S. C. No. 13 of 1997 and they are A-l and A-2 in the case. Both the appellants stand convicted for the offences punishable under Section 392 of IPC and sentenced to suffer rigorous imprisonment for five years each and further sentenced to pay a fine of Rs. 1,000/- each and in default to suffer simple imprisonment for three months. They further stand convicted for the offence punishable under Section 411 of IPC and sentenced to suffer rigorous imprisonment for two years with a direction to run the sentences concurrently, by the learned metropolitan Sessions Judge, Vijayawada by his judgment dated 17-2-1998 in S. C. No. 13 of 1997. ( 2 ) THE grave men of the charge against the appellants and another was that all the three along with another by name Challa srinivas Reddy on 2. 9. 1988 at about 1. 45 p. m. in pursuance of their common intention to commit robbery in the Union Bank of india, Enikepadu Branch, Vijayawada (hereinafter referred to as Bank), A-1 and a-3 having armed themselves with a knife and a revolver respectively entered the Bank and wrongfully confined one P. S. N. Mallikarjuna Sarma, Patan Ghouse Khan ghori, Pisipati Ramalingaiah, Vadapalli venkateswara Rao, Lamu Peter Prasad and threatened all the staff members to destroy the Bank by fire and then A-l attempted to kill one Vemuri Venkata Satyanarayana Siva prasad and A-3 attempted to kill the said person by pointing with a knife and revolver at him, and that similarly they both attempted to kill one S. N. Mallikarjuna Sarma, Patan ghouse Khan Ghori, Pisipati Ramalingaiah, vadapalli Venkatarama Rao, Lamu Peter prasad, J. Nagamalleswar Rao, Yelamanchili seeetarama Prasad and thereby committed the offences punishable under Section 448, 342, 506 (2), 307 and 392 of IPC and section 27 of the Indian Arms Act. In order to bring home the guilt to the accused of the above charges the prosecution examined as many as 28 witnesses and got exhibits B-1 to B-34 and MOs. 1 to 605 marked. None was examined on the side ofthe accused when called upon to enter upon their defence and no documents were got marked except Exs. D-1 to D-6 contradictions from the previous statements of P. Ws. 2, 7, 8 and 20. 1 to 605 marked. None was examined on the side ofthe accused when called upon to enter upon their defence and no documents were got marked except Exs. D-1 to D-6 contradictions from the previous statements of P. Ws. 2, 7, 8 and 20. A-4 died pending investigation. Only three accused faced the trial. Considering the evidence both the oral and documentary on record and after having heard of either side the learned metropolitan Sessions Judge found A-1 and a-2 guilty of the charge under Section 392 and acquitted them of all other charges. He found A-3 not guilty and acquitted him of all the charges. A-l and A-2 were further found guilty for the offence under section 411 of IPC. The appellants are now assailing their convictions and sentences passed as aforesaid. No appeal was filed by the State as against the acquittal of A-3. ( 3 ) THE case of the prosecution as can be seen from the testimony of the witnesses was that a1l the accused with an intention to commit robbery in the Bank left on two scooters at 12 noon on 2. 9. 1988 and reached the premises of the Bank at 1. 45 p. m. Initially the deceased-accused entered the bank and pretended to have obtained a demand draft for Rs. 30/- by standing at the cash counter and at that stage A-l wearing a woolen monkey cap, and A-3 wearing a helmet having armed themselves with a knife and a revolver respectively entered the Bank. Upon seeing them the deceased took out his revolver and al1 the three accused A-l, A-3 and the deceased threatened P. W. I, the Manager of the bank, P. Ws. 3 and 7 Head Cashier and Staff member of the Bank respectively to kill them and pushed them towards a corner of the Bank along with the customer P. W. 9 who was present in the Bank. P. W. 8 who came to the Bank after having seen the incident some how came out of the Bank and cried for help from P. W. 4, 12 and some others. In the meanwhile the accused disconnected the telephone wire of the Bank, dragged P. W. 7 into the cash cabin and committed theft of the cash from the cabin. In the meanwhile the accused disconnected the telephone wire of the Bank, dragged P. W. 7 into the cash cabin and committed theft of the cash from the cabin. Thereafter, they got the safe locker opened by P. W. 7 and committed theft of cash and gold bags from the Bank. After having obtained a bag from one of the employees of the Bank they filled it with the cash and thereafter confined P. Ws. l, 27, 9 and others to the safe room and after having locked the same and confining P. Ws. 4 and 12 in the bank Hall and after having bolted the same from outside A-l, A-3 and the deceased came out of the Bank with the cash and gold jewellery joined A-2 who was waiting outside with two scooters, and all of them left the Bank. ( 4 ) P. W. 5 tried to stop them but having been threatened by showing the revolvers could not stop them and all the accused escaped on two scooters towards Vijayawada. A-l was driving the scooter AIX 7953 and the deceased-accused was a pillion rider. A-2 was driving the second scooter, which had no number, and A-3 was a pillion rider. P. W. 3, the watchmen came to the bank opened the main door. P. W. 8 informed P. W. 10 the Armed Reserve constable and the Constable of the police jeep who were going in the Jeep towards vijayawada along with another constable. They flashed the news to the police control room on VHP set. ( 5 ) UPON receiving the news through VHF sets P. W. 20 along with staff detained a-1 at 2. 30 p. m. while he was going on the scooter. P. W. 19 detained A-2 and A-3 going on another scooter. Upon seeing him when A-2 and A-3 abandoning the scooter, started running, P. W. 19 apprehended A-2. However, A-3 could not be apprehended as he escaped. P. W. 20 detained A-l in the poleytechnic College premises. ( 6 ) IN the meanwhile, P. W. I came to VIII Town Police Station, Vijayawada and lodged a report with P. W, 18 who registered the case as Crime No. 180/88. P. W. 27 took up investigation in this case. However, A-3 could not be apprehended as he escaped. P. W. 20 detained A-l in the poleytechnic College premises. ( 6 ) IN the meanwhile, P. W. I came to VIII Town Police Station, Vijayawada and lodged a report with P. W, 18 who registered the case as Crime No. 180/88. P. W. 27 took up investigation in this case. He arrested a-l and A-2 and seized the cash and gold ornaments, got the identification parade conducted through the Magistrate, P. W. 6 on 1. 10. 1988 and after completing the investigation, eventually filed the charge-sheet. ( 7 ) AS aforesaid the plea of the accused is one of total denial. ( 8 ) IT is a case of day light robbery committed in the Bank at 1. 45 p. m. on 2. 9. 1988. Out of the four accused as per the case of the prosecution one died during the pendency of the investigation and the other three were charge-sheeted. Out of the witnesses examined P. Ws. 1, 2, 3 and 7 are the Bank officials and out of them P. Ws. 1, 2 and 7 are only the direct witnesses to the occurrence. P. W. 3 only entered the Bank subsequently and released the Bank officials and other villagers who were wrongfully confined in the safe room as well as in the main hall. P. Ws. 4, 5, 8 and 9 are the villagers who came to the Bank upon hearing the news and they too were confined in the Bank. P. W. 10 and 13 are the armed reserve constables who flashed the news having been informed by some of the witnesses. P. W. 11 is the owner of the scooter bearing No. AIX 7953 which was used by A-2 and A-3 in the commission of the offence. PWs. 19 and 20 are the two police officers who apprehended separately a-l and A-2 in this case. P. Ws. 21 and 24 are the mediators for the arrest of A-l and seizure of the theft property and P. Ws. 20, 21 and 22 are the mediators for the arrest of A-2 and seizure of the theft property. P. W. 27 is the Investigating Officer. The main case revolves round the testimony of p. Ws. 1, 2, 7, 19, 20 and 27. P. Ws. 20, 21 and 22 are the mediators for the arrest of A-2 and seizure of the theft property. P. W. 27 is the Investigating Officer. The main case revolves round the testimony of p. Ws. 1, 2, 7, 19, 20 and 27. P. Ws. 3,4,5,8,9 and 12 could not identify the accused in the identification parade conducted by P. W. 6, the Magistrate. P. Ws. 1,2,5,7 and 9 however identified A-l in the test identification parade conducted by P. W. 6. ( 9 ) THE prosecution in this case seeks to adduce two sets of evidence one by means of direct evidence from the testimony of p. Ws. 1, 2 and 7 and the other by means of circumstantial evidence from the arrest and seizure said to have been effected by P. W. 27, the Investigating Officer when PWs. 19 and 20 apprehended A-l and A-2. The mediators before whom the arrest and seizure were effected viz. , P. W. s. 21, 22 and 24 have shown their volte faces and have not supported the case of the prosecution therefore there remains the testimony of P. Ws. 19, 20 and 27 all being the police officials. ( 10 ) SRI C. Padmanabha Reddy, learned Counsel appearing for the appellants contends that the test identification parade conducted in this case by P. W. 6 is false, the photos of a-1 and A-2 having been published on the next day of the incident and having been seen by all concerned, therefore, that cannot be relied upon. The learned Counsel further seeks to contend that the mediators who are the independent witnesses having turned hostile, the so called seizure of the cash and jewellery cannot be relied upon placing reliance upon the sole testimony of P. W. 27. Finally, the learned counsel contends that the property has not been directly seized from the possession of a-1 or A-2 and therefore their conviction raising presumption under Section 114 illustration (a) of the Indian Evidence Act is bad. Finally, the learned counsel contends that the property has not been directly seized from the possession of a-1 or A-2 and therefore their conviction raising presumption under Section 114 illustration (a) of the Indian Evidence Act is bad. Having regard to the said contentions of the learned Senior Counsel the points that arise for my determination in these appeals are; (A) Can the test identification parade conducted by P. W. 6 be relied upon having regard to the publication of the photos of the culprits in the next day and the delay in conducting the test identification parade; (b) What is the evidentiary value of the testimony of P. Ws. 1, 2 and 7 in the absence of test identification parade; (c) Whether the cash and jewellery have been recovered from the possession of the accused and if so what is the effect. ( 11 ) THE evidence of P. W. 6 shows that he received a requisition on 9-9-1988 from the I. O. who conducted test identification parade and he fixed the date for the said purpose. In the test identification parade conducted by him according to his evidence p. W. I identified A-l two times. P. W. 2 identified A-1 on two times. P. W. 5 identified a-l and A-2 twice. In his evidence it discloses that A-l informed him that the photos of A-1 and A-2 were taken by the police and they were shown to the witnesses 3 or 4 times when they were detained in the viii Town Police Station, Vijayawada. It is in the evidence of P. Ws. l, 2 and 7 that the photos of A-l and A-2 had been published in the daily newspaper on the next day of the incident viz. , on 3. 9. 1988 and they saw them in the newspapers. The test identification parade obviously in this case was conducted on 1. 10. 1988 as can be seen from Ex. P-12 proceedings. Obviously, therefore there is more or less a clear one month time in between the date of the incident and arrest and the date of the identification in the test identification parade. However, as can be seen from the evidence of P. W. 27, the Investigating officer that A-l and A-2 were produced before the Magistrate on the intervening night of 3/4-9-88 at 0. 15 hours. However, as can be seen from the evidence of P. W. 27, the Investigating officer that A-l and A-2 were produced before the Magistrate on the intervening night of 3/4-9-88 at 0. 15 hours. Having been asked by the learned Magistrate to produce them on the next working day they were produced before the Court on 5. 9. 1988 at 1 p. m. when they were remanded to judicial custody. On that day itself the io filed the petition before the Court seeking police custody. Police custody was granted on the next day for a period of 12 days. It is only after they were produced before the Court again after the expiry of the period in which they were in the police custody they were remanded to Judicial custody and the request was filed by the i. O. on 19. 8. 1988 before the Court requesting it to conduct the identification parade. Having regard to these facts, which are discernable from the evidence on record i see no delay on the part of the I. O. in having filed an application for conducting the test identification parade and therefore on the ground of delay the evidence of pw-6 which is otherwise relevant cannot now be jettisoned from consideration. In that view of the matter, I am afraid I cannot accede to the contention of the learned senior counsel that the test identification parade looses its significance. However, one shall not be oblivious of the other glaring circumstance emanating from the record that the photos of A-l and A-2 had been published in the newspapers on the very next day of the incident and were seen by the material witnesses in this case. From the evidence of P. Ws. 1, 2 and 7, it is obvious that all the witnesses could identify a-l in the test identification parade and none of them was able to identify the other accused at the same time. Can it be said under the circumstances, the publication of the photos in the newspapers had the necessary influence over mental faculties of, the witnesses. 1, 2 and 7, it is obvious that all the witnesses could identify a-l in the test identification parade and none of them was able to identify the other accused at the same time. Can it be said under the circumstances, the publication of the photos in the newspapers had the necessary influence over mental faculties of, the witnesses. The learned Sessions Judge adverted to the same point and was of the view that all the witnesses could have identified A-2 also had they been influenced by the publication of the photos of the accused in a newspaper, in his view the learned Judge thought such a publication was of no consequence. It may be mentioned here that such publication is not at all advisable and precaution should be taken to avoid such publication by the investigating agency but it would effect the whole case which is otherwise clear and cogent. Anyway, there has been a serious mistake committed by the investigating agency in this regard. But having regard to the fact that the witnesses could not identify A-2 the inescapable conclusion would be that such a publication in the newspapers has not resulted in any necessary consequence. But that cannot rule out the possibility of the necessary influence in the minds of the witnesses in regard to the other accused. Even after seeing the photos of two of the accused when the witnesses were able to identify only one out of them it cannot decisively be said that the publication of the photos in the newspapers on the next day of the incident has no effect at all. It may be a fact, that despite such publication the witnesses were able to identify one out of the two culprits. In that view of the matter, I am unable to concur with the findings of the learned Sessions Judge in regard thereto. The test identification parade for the foregoing reasons in my considered view loses its significance. ( 12 ) DE hors the identification in a previous test identification parade can the otherwise clear and cogent evidence of p. Ws. 1, 2 and 7 be relied upon on the factum of identification of A-l and A-2 in Court. It may be mentioned at the outset that an identification parade was conducted long after the incident, P. W. 1 was examined on 22. 9. 1997. 1, 2 and 7 be relied upon on the factum of identification of A-l and A-2 in Court. It may be mentioned at the outset that an identification parade was conducted long after the incident, P. W. 1 was examined on 22. 9. 1997. P. W. 2 was examined on 24. 9. 1997 and P. W. 7 was examined on 26. 7. 1997. The incident in this case occurred on 2. 9. 1988 that means nearly after nine years the witnesses were examined before the Court when they identified A-l and A-2. It is in the evidence that A-l was wearing a monkey cap and A-2 was wearing a helmet at the time of the commission of the offence. The problem becomes further compounded on account of these circumstances that the faces of A-l and A-2 could not be seen by the witnesses on account of their wearing a monkey cap and a helmet respectively. While P. W. I did not speak anything about A-l removing the monkey cap, P. W. 3 and 7 did speak about a-1 removing the monkey cap and giving it to other accused so as to keep the gold jewellery in it. P. W. 2 omitted to have stated the said fact in his previous statement before the Investigating Officer, P. W. 7, however, did say in his previous statement about the said fact. When the testimony of p. Ws. l and 2 is receiving corroboration by the testimony of PWs. 3 and 7 the omission on the part of P. W. 2 in having stated so in his previous statement before the investigating Officer loses all significance. In that view of the matter, when the testimony of P. W. 7 bears out the testimony of P. Ws. l and 2 on the crucial point of A-l removing the monkey cap I see no reason as to why the testimony of these three witnesses on this aspect shall not be relied upon. Thus, the overwhelming evidence of P. Ws. 1, 2 and 7 clearly shows that A-1 removed the monkey cap before leaving the precincts of the Bank. l and 2 on the crucial point of A-l removing the monkey cap I see no reason as to why the testimony of these three witnesses on this aspect shall not be relied upon. Thus, the overwhelming evidence of P. Ws. 1, 2 and 7 clearly shows that A-1 removed the monkey cap before leaving the precincts of the Bank. Having regard to the fact that the incident lasted for a considerable time in the Bank and the witnesses had sufficient opportunity to see the culprits although both a-1 and A-2 are totally aliens to the witnesses, the opportunity of the witnesses to watch them clearly cannot be ruled out. When the witnesses had sufficient opportunity to watch the culprits the factum of identification by the witnesses depends mainly upon the capacity of the witnesses to identify. It differs from case to case. On an ultimate analysis it all depends upon the capacity of the witness to perceive things; assimilate the same, his capacity to remember, recapitulate and reproduce at the appropriate time. This cannot be uniform either way in the case of all the witnesses. Here is a case where P. Ws. l, 2 and 7 are the responsible Bank officials who had the clear opportunity to observe the culprits in the course of perpetrating the crime in broad day light for a considerable time in the premises of the Bank and identifying one of them in the test identification parade conducted one month thereafter. After all test identification parade is needed for the i. O. to satisfy himself that the witnesses could identify the culprits before seeking charge-sheet the accused in a Court of law. Such an evidence emanating from the test identification parade is not a substantive piece of evidence and can be used only to corroborate the substantive piece of evidence being given on oath before a Court of Law. Well, the main use of the previous test identification parade being only in the nature of corroborative piece of evidence even in the absence of such corroborative piece of evidence if there is any evidence emanating from the record which seeks to corroborate the direct evidence of the witnesses, I am of the considered view that the testimony of direct witnesses can be relied upon provided if it is corroborated otherwise, ft is therefore appropriate to see whether the testimony of P. Ws. 1, 2 and 7 receives any corroboration so that their testimony can be accepted without any hesitation. ( 13 ) THE circumstantial evidence being relied upon in this regard by the prosecution is in the nature of seizure of theft property. It may be mentioned at the outset that the property produced before the Court and marked as MOs. 1 to 605 is obviously the theft property, since there has been no gainsaying of the same. Further more it is nobody s case that it is stage managed by P. Ws. 1, 2 and 7 and created an episode of day light robbery in the Bank. Well, when there is no denial of the incident of day light robbery in the Bank and when there is no denial that MOs. 1 to 605 are the jewellery and the cash pertaining to the bank coupled with the evidence of P. W. 27 who recovered these properties on the spot from two places, there can be no hesitation to conclude that MOs. l to 605 constitute the theft property undoubtedly. It is therefore to be seen whether this property has been recovered as propounded by the prosecution from A-1 and A-2. The evidence of P. Ws. 19 and 20 is germane in this context to be considered. Both of them are the police officers and their evidence is obviously that they could apprehend A-1 and A-2 on two different places although some lapse seems to have been pointed out in the cross-examination of these two witnesses with reference to the relevant police orders. As a whole their testimony has not been shaken. Their admission clearly brings home to the factum of apprehension of A-1 and A-2. Both the scooters were recovered from the place at which they had fallen along with the properties. The evidence of P. W. 27, the Investigating Officer who effected the seizure and recovery cannot be eschewed from consideration for the mere reason that the mediators PWs. 21 and 22 and 24, have not supported the case of the prosecution. There is no law which says that the evidence of the police officers cannot be accepted in the absence of the corroborative evidence of the mediators in whose presence the seizure and recovery are said to have been effected. 21 and 22 and 24, have not supported the case of the prosecution. There is no law which says that the evidence of the police officers cannot be accepted in the absence of the corroborative evidence of the mediators in whose presence the seizure and recovery are said to have been effected. On the other hand, P. W. 27 being the police officer can be presumed to have discharged his official duties in regular course as can be seen from Illustration (e) to Section 114 of the Indian Evidence Act. The IO can at best be termed as an interested witness and therefore it becomes necessary for the Court to appreciate the evidence of the IO or the police officer, like any other interested witness by approaching his testimony with the necessary circumspection. Nothing has been elicited in the cross-examination of p. W. 27 so as to discredit his testimony. The seizure and recovery in this case are so soon after the incident of day light robbery in the Bank. ( 14 ) IT is no doubt true that the case of A-1 is distinguishable with that of A-2. Insofar as A-2 is concerned the gravemen of the charge against him was under Section 392 read with 34 of IPC. Obviously, according to the evidence appearing on record three persons entered into the Bank and A-2 was not one among those three persons. Therefore, the participation of A-2 in the crime proper has not been there and it is not even the case of the prosecution. According to the case of the prosecution he was waiting outside when the other offenders gained entry into the bank. That is the reason why the charge under Section 392 r/w 34 of IPC was framed. Therefore, at the out set his conviction under Section 392 per se is not correct since he was charged under Section 392 read with 34 of IPC i. e. for vicarious liability. Therefore his conviction for substantive offence of robbery cannot be legally sustained. ( 15 ) THE learned Counsel for A-2 contends that the evidence on the side of the prosecution insofar as A-2 is concerned is infirm and therefore the possession of the theft property has not been proved beyond reasonable doubt. In this connection, the learned Counsel seeks to place reliance upon the evidence of P. Ws. 19 and 20 and then P. W. 27. In this connection, the learned Counsel seeks to place reliance upon the evidence of P. Ws. 19 and 20 and then P. W. 27. As can be seen from the evidence of P. Ws. 19 and 20 there appears obviously a confusion as regards the fact of the seizure of the vehicle. According to the evidence of P. W. 11 the owner of the scooter that he gave his scooter bearing no. AIX 7953 to A-2 on 2-9-1988 at about 10. 20 a. m. , and thereafter A-2 did not return the same on that day at 5. 30 p. m. the police came to him and enquired about the scooter when the police seized the registration certificate of the vehicle vide ex. P-15 and the sale letter of the scooter ex. P-16. But, the evidence of P. W. 19 shows that the scooter which fell down on the ground when he apprehended A-2 did not bear any registration number and the number plate was painted with black colour. The evidence of P. W. 20 shows that the scooter which fell down on the ground when he apprehended A-1 that scooter does bear the registration number and evidence of p. W. 27 shows that he recovered the scooter bearing No. AIX 7953 at the place where A-1 is said to have been apprehended. The evidence should have been otherwise viz. that the scooter which was found by p. W. 19 when he apprehended A-2 should be the scooter bearing No. AIX 7953 and the scooter which was found by P. W. 20 should be the second one having no number; the number plate having been painted with black paint. This confusion in the evidence of p. Ws. 19 and 20 coupled with the evidence of P. W. 27 has not been cleared or sought to be cleared by the prosecution. Nonetheless in my considered view this will not effect the substratum of the case of the prosecution. The case of the prosecution is that four culprits came on two scooters and out of them three entered the Bank and one remained at outside and all the four left on two scooters again after perpetrating the offence and that both the scooters were chased by P. Ws. 19 and 20 who could ultimately apprehend two out of them and the two scooters and the remaining two made good their escape. 19 and 20 who could ultimately apprehend two out of them and the two scooters and the remaining two made good their escape. This substratum of the case of the prosecution has not been effected and on the other hand it remained consistent. Therefore, even if there has been some confusion as can be seen from the evidence of P. Ws. 19, 20 and 27 what has been recovered by P. W. 19 is the scooter having no number, which ought to have been the scooter bearing the No. AIX 7953 and what has been recovered by P. W. 20 viz. , the scooter bearing No. ATX 7953 which ought to have been the scooter without number, the number plate having been painted with black paint. The recovery cannot be doubted. It is just possible that while escaping from the Bank the scooters might have been changed. A-2 who brought the scooter bearing No. AIX 7953 might have been riding the other scooter having no number. This possibility of interchange of the vehicles cannot be ruled out. In that view of the matter, I see no merit in the contention of the learned counsel. ( 16 ) IT has next been contended that according to the evidence of P. W. I 1 that on 2-9-1988 at about 5. 30 p. m. , they asked him about the whereabouts of the scooter and that while informing the police that it had been given to A-2 he also showed the police A-2 at his house and that by the time they went to the house of A-2, A-2 was present in the house and he was taken to vijayawada by the police at 6 p. m. This admission on the part of P. W. 11 is sought to be pressed so as to contend that the apprehension of A-2 and the seizure of the vehicle as alleged by the prosecution are all false. The admission has been made by p. W. 11 in the cross-examination. In the chief- examination he deposed that he gave the scooter to A-2 and A-2 did not return the same. The admission has been made by p. W. 11 in the cross-examination. In the chief- examination he deposed that he gave the scooter to A-2 and A-2 did not return the same. There appears to be some inherent improbability in the so called admission made by the witness that has got to be considered by reading the evidence of P. W. 11 as a whole, but not the isolated or sequestered bit which has been elicited in the cross- examination while appreciating the evidence of the witness. As a matter of fact, the Court has to consider the whole evidence of the witness, but not the sequestered excerpts picked out from the evidence and the evidence should also be considered with reference to the other surrounding circumstances and probabilities. One improbability here is that when A-2 is said to have been at his house at 6 p. m. , when he was said to have been shown by P. W. 11 to the police, the scooter must have been also with A-2. According to the clear evidence coming forth on record and from that of p. Ws. 18, 19, 20 and 27 the scooter was lying on the spot where it skided, till it was recovered by P. W. 27 under the cover of mediators report. This unimpeachable evidence cannot be ignored. There is no explanation coming forth from A-2 that he parted with the scooter in favour of somebody else. His possession of the scooter having taken the same from P. W. 11 cannot be ignored and in the absence of any explanation that he has given the scooter to somebody else. The factum of possession of the scooter bearing No. AIX 7953 by A-2 having taken the same from P. W. 11 has not been denied. The evidence of P. W. 11 in this regard remained uncontroverted. It is, therefore, obvious that it is within the exclusive knowledge of A-2 as to what happened to that scooter and therefore he must come forward with an explanation as to how it was not in his custody before seeking to contend before the Court of law that he was at his house at 6 p. m. , where at he was taken into custody by the police and the scooter was not with him by then. Section 106 of the Indian Evidence Act Is germane in the context for consideration which mandates that when it is within the exclusive knowledge of the person the burden is upon him to prove. Of course, there can be no doubt that the burden that is cast upon the accused under Section 106 of the Indian evidence Act cannot absolve the prosecution from proving the case beyond reasonable doubt as the burden that is cast upon the prosecution under Section 101 of the Indian evidence Act cannot be replaced by Section 106 of the Indian Evidence Act. The prosecution in this case by the evidence of p. Ws. 19, 20 and 27 coupled with the mediators report could clearly establish about the chasing of the offenders when they are fleeing away on two scooters, and recovery of the said two scooters and apprehension of two of the culprits out of four. This evidence remained intact. Well, when that cannot be doubted the so called admission made by p. W. 11 cannot create even a dent let alone the case of a wedge in the motive of the prosecution s case and make the evidence of p. Ws. 19, 20 and 27 even suspect. For the foregoing reasons, the second contention of the learned Counsel also merits no consideration. ( 17 ) YET another improbability could be seen from P. W. 11. In the chief-examination it is stated that the police recovered Exs. P- 15 and 16 documents from him when P. W. 27 visited his house at 5. 30 p. m. on 2. 9. 1988. In the cross-examination the witness stated that Exs. P-15 and 16 were in the scooter when he handed over the scooter to A-2. P. W. 27 s evidence clearly shows that he recovered Exs. P-15 and 16 from P. W. 11 when he visited the house of P. W. 11 at 2003 (1) (Crl.)F-37 5. 30 p. m. on 2-9-88. Therefore, the evidence of PWs. ll and 27 are consistent on this aspect. Now, the absurdity can be seen from the admission made by P. W. 11 in the cross- examination that Exs. P-15 and 16 were in the scooter when he delivered the scooter to A-2, inasmuch as the documents could have been recovered by P. W. 27 as deposed by the witness himself. ll and 27 are consistent on this aspect. Now, the absurdity can be seen from the admission made by P. W. 11 in the cross- examination that Exs. P-15 and 16 were in the scooter when he delivered the scooter to A-2, inasmuch as the documents could have been recovered by P. W. 27 as deposed by the witness himself. Therefore, this admission and the other admission about the presence of A-2 at his house shall have to be considered with the surrounding circumstances viz. , the seizure of the scooter on the spot by the Investigating Officer, and the consequential improbabilities. In mat view of the matter, much credence cannot be given to the admissions made by P. W. I 1 in his evidence in the cross-examination having regard to the reasons enumerated hereinabove. ( 18 ) THE learned Counsel for A-2 further seeks to contend that the head constable and constable who are said to have been placed on duty at the two places where at the two scooters skidded and remained on the ground have not been examined in this case to connect the link. Non-examination of those head constable and constable cannot be in my considered view have any adverse effect on the case of the prosecution. It is a case where had they been examined the prosecution case could have been further strengthened. The non- examination on the other hand cannot falsify the evidence of P. Ws. 19, 20 and 27 as that evidence is reliable and trusteworthy. In this connection, the difference between a material witness and a witness whose evidence further strengthens the case of the prosecution shall not be lost sight of. No adverse inference can be drawn from the non- examination of a witness who is not material but, is in the nature of only supporting evidence, but, adverse inference can be drawn from the non-examination of material witness whose testimony becomes necessary to unfold the case of the prosecution and unravel the truth. The Head constable and constable, in this case in my considered view do not belong to the former category, therefore no adverse inference can be drawn, from out of the fact of non- examination of those two witnesses. Having regard to these reasons it cannot be said that the case of the prosecution insofar as A-2 is concerned is infirm. The Head constable and constable, in this case in my considered view do not belong to the former category, therefore no adverse inference can be drawn, from out of the fact of non- examination of those two witnesses. Having regard to these reasons it cannot be said that the case of the prosecution insofar as A-2 is concerned is infirm. ( 19 ) AS afore discussed the conviction of A-2 for the substantive offence of robbery is quite unsustainable. The finding of the trial Court in that view of the matter is not correct. However, in this case since the recovery has been proved and having regard to the time at which the recovery has been made and the otfier surrounding circumstances like chasing the scooters who have sought to flee away on two scooters apprehending two of them and recovering the scooters would lend any amount of support to the case of the prosecution and from out of these circumstances the necessary presumption can be drawn under Section 114 of Illustration (a) of the evidence Act. Although A-2 was not one among the two culprits who committed the actual offence of robbery his association with the other three having been proved when all the four sought to free away from the Bank along with the money under two scooters, the common intention of all the four to commit the robbery can squarely be drawn from out of these circumstances. Therefore, A-2 is liable for the offence of robbery having shared the common intention with the other three culprits who actually perpetrated the offence. His conviction therefore should be under Section 392 read with 34 of 1pc, but not for the substantive offence of robbery. ( 20 ) FOR the foregoing reasons the testimony of P. Ws. 19, 20 and 27 considered together clearly brings home to the factum of seizure and recovery. Further more, the seizure and recovery have been effected in this case under a cover of mediators report. ( 20 ) FOR the foregoing reasons the testimony of P. Ws. 19, 20 and 27 considered together clearly brings home to the factum of seizure and recovery. Further more, the seizure and recovery have been effected in this case under a cover of mediators report. Although the mediators have not supported the case of the prosecution the fact that the investigating Officer found on the spot the two vehicles lying on the ground which in my considered view becomes the direct evidence on the part of the Investigating officer having seen with his own eyes and having got it incorporated in the mediators report, the mediators report in this case further lends assurance to the testimony of P. W. 27, the IO. Very recently the Apex Court in State Government of n. C. T. of Delhi v. V. Sunil, (2001) 1 SCC 652 , held that a presumption can be raised that the Investigating Officer performed his duties in regular course and therefore even in the absence of evidence of the panch witnesses yet the evidence of Investigating officer is otherwise cogent and reliable can be relied upon in support of the factum of seizure and recovery. For the foregoing reasons, the arrest, seizure and recovery of the properties can clearly be seen from the evidence of P. Ws. 19,20 and 27. This factum of recovery from the appellants would lend assurance to the evidence of the direct witnesses P. Ws. l, 2 and 7 who identified a-1 in the Court. The contention of the learned Senior Counsel that since the recovery has not been made directly from the possession of the appellants, is of no consequence for the reasons hereinabove discussed, and merits no consideration. Although two persons were found going on a scooter, having regard to the facts and circumstances of this case when both of them were chased and both of them had abandoned the scooter and took to their heels, it cannot be surmised that one out of the two might be an innocent and it cannot be discerned who out of the two is the culprit. Had one out of the two been really innocent there can be no occasion for him to try to escape from the clutches of the police and to run away from the police. Had one out of the two been really innocent there can be no occasion for him to try to escape from the clutches of the police and to run away from the police. The facts which are peculiar to this case would certainly negate the contention of the learned Counsel. The possession of mos. l to 605 can therefore be believed. Added to it one of the two scooters does not bear any number. This circumstance which is clearly emanating from the record, goes in support of the case of the prosecution that painting of the number plate has been purposefully made with an intention to perpetrate the crime. This glaring circumstance emanating from the record would further lend assurance to the case of the prosecution. The fact that a scooter has been recovered on the spot cannot be disbelieved having been clearly established from the testimony of P. W. 27 and corroborated by the mediators report. For the foregoing reasons, the recovery cannot be doubted and it is a clear case of seizure of the theft property MOs. l to 605 from A-1 and A-2. ( 21 ) THE learned Sessions Judge while convicting the accused for the offence of robbery punishable under Section 392 also convicted them for the other offence punishable under Section 411 of IPC. Such a conviction is bad under Law. It is only from the factum of the possession of the theft property the necessary presumption under Illustration (a) to Section 114 of the indian Evidence Act could be drawn and therefore it becomes an offence of either theft or, receiving of the stolen property, and it cannot be both. Therefore, two convictions one under Section 392 and the other under section 411 of IPC are legally not sustainable. In view of the same the conviction of the appellants under Section 411 of IPC separately cannot therefore be sustained and has to be set aside. Well, A-1 was identified in the Court by P. Ws. 1, 2 and 7, but A-2 has not been identified. For the reasons hereinabove discussed the possession and recovery of the theft property from A-2 has been believed by me. The possession is obviously so soon after the offence of robbery on the same day without any lapse of time. Well, A-1 was identified in the Court by P. Ws. 1, 2 and 7, but A-2 has not been identified. For the reasons hereinabove discussed the possession and recovery of the theft property from A-2 has been believed by me. The possession is obviously so soon after the offence of robbery on the same day without any lapse of time. This immediate possession of the theft property from A-2 is sufficient enough to raise the necessary presumption under illustration (a) to Section 114 of the Indian evidence Act. Not only that the evidence that A-2 was found on his scooter along with A-3 and was chased and apprehended is another circumstance which shows the conduct of the accused. This conduct coupled with the presumption under Section 114 illustration (a) of IPC (Sic Indian Evidence act) would remove any doubt and it is a clear case where the offence of robbery can clearly be brought home to A-2 also. For the foregoing reasons the finding of guilt arrived at by the learned Sessions judge against both the appellants for the offence punishable under Section 392 of ipc for robbery cannot be said to have been vitiated by any of the infirmities. Therefore there is nothing to interfere with the said finding of guilt. ( 22 ) IN the result, the appeals are allowed in part and the conviction of A-1 for the offence punishable under Section 411 and conviction of A-2 for the substantive offence punishable under Section 392 and for the offence punishable under Section 411 are hereby set aside. The conviction of A-1 for the offence punishable under Section 392 as held by the trial Court is hereby confirmed. A-2 instead of the substantive offence under Section 392 is found guilty and accordingly convicted for the offence punishable under Section 392 read with 34 of IPC. ( 23 ) COMING to the proportionality of sentences both the learned Counsel appearing for A-1 and A-2 contends that there have been no previous bad antecedents or cases filed against these two accused. Having regard to their age and family background they deserve leniency. Both of them have been sentenced to suffer rigorous imprisonment for 5 years. The fact that there hove been no bad antecedents certainly would constitute a mitigating circumstance. Under the circumstances, the sentences will have to be reduced. Having regard to their age and family background they deserve leniency. Both of them have been sentenced to suffer rigorous imprisonment for 5 years. The fact that there hove been no bad antecedents certainly would constitute a mitigating circumstance. Under the circumstances, the sentences will have to be reduced. A-1 is therefore sentenced to suffer rigorous imprisonment for 3 (three) years and A-2, however, is sentenced to suffer rigorous imprisonment for 2 (two) years.