Judgment :- COMMON JUDGMENT Criminal Appeal No.1470 of 2002: Accused 1 to 6 in S.C.No.415 of 2001 on the file of Additional Sessions Judge (Fast Track Court No.I), Madurai are the Appellants in this appeal. 2. Criminal Appeal No. 1025 of 2002: Accused No.7 in S.C.No.415 of 2001 on the file of Additional Sessions Judge (Fast Track Court No.I), Madurai is the Appellant in this appeal. 3. By the Judgment dated 07.05.2002 in S.C.No.415 of 2001, the Fast Track Court No.I, Madurai has convicted the Appellants / A.1 to A.7 under Sec.396 I.P.C. and sentenced them to undergo Rigorous Imprisonment for ten years each and to pay fine of Rs.1,000/- each. 4. Both the appeals arise out of common Judgment; common points for determination are involved in both the appeals. Hence, both the appeals were heard together and disposed of by this common Judgment. 5. Case of the prosecution could briefly be stated thus:- P.W.1 - Balasubramanian and P.W.2 - Kesavan are the sons of deceased Rajavelu. P.W.3 - Santha is the wife of the deceased and P.W.4 - Subban is the farm servant of the deceased. Deceased Rajavelu and his family are living in the Garden house at Chettiyappatty, Kurinji Nagar. 6. Occurrence. On 13.08.1999 / 14.08.1999 - mid night at Chettiappatti in Kurinji Nagar, in the midnight, there was knock at the Door. On hearing knock at the Door, P.W.1 - Balasubramanian went to open the Door. Beforeever he could open the Door, A.1 to A.7 gained forcible entry after breaking the Door and asked him as to where the money and jewels were kept. At that time, A.2 has stabbed on the abdomen of Rajavelu, which caused bleeding injury in his abdomen. A.1 tried to stab Rajavelu with knife. When Rajavelu tried to prevent the same with his two hands, he sustained bleeding injuries on his both palms. A.1 and A.2 dragged the injured Rajavelu outside the house. A.3 stood with knife near P.W.4 - Subban. A.4 and A.5 tied both the hands of P.W.1 with rope and gagged his mouth with cloth. A.6 and A.7 gagged the mouth of P.W.2 - Kesavan with cloth and tied his hands with rope. A.1 and A.2 brought back Rajavelu again into the house. A.3 stood with knife near P.W.4 - Subban. A.4 and A.5 tied both the hands of P.W.1 with rope and gagged his mouth with cloth. A.6 and A.7 gagged the mouth of P.W.2 - Kesavan with cloth and tied his hands with rope. A.1 and A.2 brought back Rajavelu again into the house. In the meanwhile, A.4 to A.7 broke open the Bureau and Iron Box and robbed Silk Saree, Timepiece, Charger light, Tape-recorder, Gold rings, Wrist watch and cash worth Rs.29,000/-. When P.Ws.1, 2 and 4 raised alarm, Accused ran away with the weapons. 7. P.W.2 - Kesavan managed to untie himself and he untied P.Ws.1 and 4 also. P.W.2 went to Kunnathupatti and brought two persons and also a Car (Car driver - P.W.14 - Radhakrishnan). Injured Rajavelu, P.Ws.1 and 2 and the said two Kunnathupatti people, who came along with P.W.2 went to Usilampatti Hospital. 8. P.W.12 - Dr.Pounraj examined the injured Rajavelu at 2.00 p.m. on 14.08.1999 and noted stab injuries on the person of Rajavelu. Rajavelu was referred to Madurai Government Hospital. On the way to Madurai Government Hospital near Achambathu Village, Rajavelu succumbed to injuries. P.Ws.1, 2 and 4 and others brought back Rajavelu to Usilampatti Hospital. P.W.12 - Dr.Pounraj examined Rajevel at 4.15 a.m. and declared him dead. Ex.P.13 is the Accident Register issued by P.W.12. 9. Lodging the Complaint and registration of FIR. P.Ws.1 and 2 went to Usilampatti Police Station at 5.00 a.m. Statement of P.W.1 was recorded in Ex.P.1 and attested by P.W.2. On the basis of Ex.P.1 - Statement, P.W.20 - Sub Inspector of Police registered a case in Crime No.615 of 1999 under Ss.302 and 396 I.P.C. under Ex.P.33 - First Information Report. 10. P.W.16 - Manikandan, Grade I Police Constable took the First Information Report to Usilampatti Court. Since the Judicial Magistrate, Usilampatti was not available, he went Andippatti. After finding out the non-availability of Judicial Magistrates at Andippatti and also at Periakulam, P.W.16 handed over Ex.P.33 - First Information Report before the Judicial Magistrate, Uthamapalayam on 15.08.1999 - 10.00 p.m. 11. Investigation. P.W.21 - Inspector of Police had taken up investigation. Scene of occurrence - Garden house at Kurinjipatti (house of Rajavelu) was inspected in the presence of P.W.7 - Ashok Kumar. Ex.P.2 - Observation Mahazar and Ex.P.34 - Rough Plan were prepared on the scene of occurrence. Investigation. P.W.21 - Inspector of Police had taken up investigation. Scene of occurrence - Garden house at Kurinjipatti (house of Rajavelu) was inspected in the presence of P.W.7 - Ashok Kumar. Ex.P.2 - Observation Mahazar and Ex.P.34 - Rough Plan were prepared on the scene of occurrence. From the scene of occurrence, M.O.20 - Blood stained mud, M.O.21 - Sample mud and M.O.22 - Blood stained paddy were seized under Exs.P.3 and P.4 - Seizure Mahazars. 12. Inquest. Witnesses were examined in the presence of Panchayatdars and inquest was held on the body of deceased Rajavelu. Ex.P.35 is the Inquest Report. After inquest, body was sent to Autopsy. 13. Post-mortem. Pursuant to the requisition from the Inspector of Police, P.W.13 - Dr.Panneerselvam had conducted the Autopsy. Noting the stab injuries on the abdomen and incised wound over right wrist and left wrist, P.W.13 issued Ex.P.14 - Post-mortem Certificate. Opining that the deceased died of due to haemorrhagic shock due to cut injuries on the abdomen, right and left palm. 14. Arrest of the Accused. A.1 and A.3 were arrested on 31.08.1999 in Rakkammalpatti. Confession of A.3 (Admissible Portion - Ex.P.20) led to the recovery of M.O.30 - Knife, which was seized under Ex.P.21 - Seizure Mahazar. A.3 also identified A.1 as the co-participant in the dacoity. On that basis, A.1 was arrested. On the basis of the Confession Statement of A.1, robbed articles M.Os.1 to 7 were seized under Ex.P.22 - Seizure Mahazar. A.2 and A.4 to A.7 were arrested on 02.09.1999 - 6.00 a.m. On the basis of their Confession Statements, jewels, watches and cash were recovered from the houses of Accused. 15. Identification Parade. Pursuant to the requisition from the Inspector of Police, P.W.11 - Judicial Magistrate, Andippatti conducted Test Identification Parade in Central Jail, Madurai on 09.09.1999 - 12.00 noon. for identification of the Accused by P.W.1 - Balasubramanian and P.W.2 - Kesavan. In the Test Identification Parade, P.Ws.1 and 2 have identified the Accused 1 to 7. Ex.P.12 is the proceedings of the Test Identification Parade. 16. Seized material objects were sent for chemical analysis. Upon completion of formalities of the investigation, Charge Sheet was filed against Accused 1 to 7 under Ss.302 and 396 r/w 34 I.P.C. 17. Charges were framed under Sec.396 I.P.C. - committing dacoity with murder. To substantiate the charges against the Accused, in the Trial Court, P.Ws.1 to 21 were examined. 16. Seized material objects were sent for chemical analysis. Upon completion of formalities of the investigation, Charge Sheet was filed against Accused 1 to 7 under Ss.302 and 396 r/w 34 I.P.C. 17. Charges were framed under Sec.396 I.P.C. - committing dacoity with murder. To substantiate the charges against the Accused, in the Trial Court, P.Ws.1 to 21 were examined. Exs.P.1 to P.35 were marked. M.Os.1 to 35 were produced. Appellants / Accused 1 to 7 were questioned under Sec.313 Crl.P.C. about the incriminating circumstances and evidence. The Accused had denied all of them. In their statement, the Accused had stated that they were taken from their houses and illegally detained and a false case is foisted against them. 18. Upon consideration of the evidence adduced by the prosecution, the learned Sessions Judge found that the involvement of the Accused 1 to 7 in the dacoity is consistently spoken by P.Ws.1, 2. The Trial Court pointed out that the evidence of P.Ws.1 and 2 is corroborated by the identification of the Accused 1 to 7 in the earlier Identification Parade. It was found that recovery of looted articles is evidence of strong character against the Accused. The trial Court also pointed out the evidence of P.W.8 - Subramani, from whom A.3 is said to have taken the Motor Cycle. The trial Court rejected the defence version viz., (i) Non-mention of the name of A.3 in Ex.P.1 - Complaint would totally affect the prosecution case; (ii) Delay in the Test Identification Parade would undermine the veracity of P.Ws.1 and 2 and the identification of the Accused. 19. Assailing the reasonings and the conviction of the Trial Court, A.7 has preferred Crl.A.No.1025 of 2002 and A.1 to A.6 have preferred Crl.A.No.1470 of 2002. Mostly common arguments were advanced onbehalf of the Appellants / A.1 to A.7 in both the appeals. 20. The main point urged onbehalf of the Appellants / Accused 1 to 7 is non-mention of name of A.3 in Ex.P.1 - Complaint. It is contended that when A.3 - Mani @ Manikandan is already well-known to the family of P.W.1 - Balasubramanian, the non-mention of name of A.3 in Ex.P.1 - Complaint throws serious doubt upon the prosecution case. The main point urged onbehalf of the Appellants / Accused 1 to 7 is non-mention of name of A.3 in Ex.P.1 - Complaint. It is contended that when A.3 - Mani @ Manikandan is already well-known to the family of P.W.1 - Balasubramanian, the non-mention of name of A.3 in Ex.P.1 - Complaint throws serious doubt upon the prosecution case. Attacking the prosecution case and the conviction, onbehalf of the Appellants / Accused interalia the following contentions are raised:- (i) Test Identification Parade was held with inordinate delay on 09.09.1999; Accused were taken to custody on 25.08.1999 and were illegally detained; photographs were taken and shown to P.Ws.1 and 2 to enable them to identify the Accused; P.W.11 - Judicial Magistrate has not adopted the proper procedure in conducting the Test Identification Parade. (ii) Recovery of looted properties from different places would only suggest that the Accused were already in the custody of the Police, which was not properly appreciated by the Trial Court. (iii)There is inordinate delay in handing over the First Information Report to the Court. 21. Supporting the findings of the trial Court, the learned Government Advocate submitted that the involvement of the Accused in dacoity and their overt act are well proved by the cogent and consistent evidence of P.Ws.1, 2 and 4. Taking me through the evidence, the learned Government Advocate submitted that P.W.11 - Judicial Magistrate had adopted proper procedure for conducting the Test Identification Parade, which cannot be assailed. Drawing my attention to the recovery of robbed articles, the learned Government Advocate submitted that the trial Court has rightly placed reliance upon recovery of the articles to find the Accused guilty. Submitting that the reasonings for conviction are well balanced and the sentence of imprisonment is also reasonable, the learned Government Advocate further submitted that there is no reason warranting interference. 22. Upon consideration of the evidence and materials on record, Judgment of the trial Court and submissions of both sides, the following points arise for consideration in both the appeals:- (i) Whether the identification of the Appellants / Accused 1 to 7 and recovery of incriminating looted property and weapons used in the offence are proved by the prosecution ? (ii) Whether the facts and proved circumstances establish the guilt of the Appellants / Accused 1 to 7 ? (ii) Whether the facts and proved circumstances establish the guilt of the Appellants / Accused 1 to 7 ? (iii) Whether the conviction of Appellants / Accused 1 to 7 under Sec.396 I.P.C. and the sentence of imprisonment warrant any interference ? 23. In cases of dacoity the evidence available is of three categories, viz., (i) The culprits are caught red handed on the spot; (ii) Recovery of the incriminating facts such as looted property, weapons used in the commission of the offence. Such circumstantial evidence is of strong probative value; (iii)Identification of the culprits when they are later arrested during investigation. 24. In this case, the prosecution mainly relies upon two pieces of evidence viz., (i) Recovery of looted property and weapon used; (ii) Identification of Appellants / Accused 1 to 7 by P.Ws.1 and 2 in the Identification Parade held on 09.09.1999. Whether the above circumstances and evidence would be adequate to sustain the conviction ? is the main point arising for consideration. 25. P.Ws.1 - Balasubramanian, P.W.2 - Kesavan and P.W.4 - Subban (Partly) have narrated about the occurrence. On the mid-night of 13.08.1999 at Chettiarpatti, Kurinji Nagar Garden House, deceased Rajavelu, P.W.1 and P.W.2 were sleeping inside the house. P.W.4 - Subban (Gardener) was outside the house and sleeping in his house in the farm. In the mid-night, at about 11.00 p.m., P.W.1 heard the knock at the Door. Before ever he could open the Door, Appellants / Accused 1 to 7 after breaking the Door, gained forcible entry into the house. When Rajavelu came, A.2 stabbed him on the abdomen, which caused serious bleeding injury in the abdomen of Rajavelu. A.1 attempted to stab Rajavelu with knife and at that time, when Rajavelu tried to prevent the same with his two hands, he sustained bleeding injuries on both his palms. A.3 stood by P.W.4 - Subban brandishing the knife. A.4 and A.5 tied both the hands of P.W.1 with rope and gagged his mouth with cloth. A.6 and A.7 gagged the mouth of P.W.2 with cloth and tied his hands with rope. A.4 to A.7 broke open Bureau, Iron Box, robbed Silk Saree, Jewels, Watches, Gold Rings and cash worth about Rs.29,000/-. P.Ws.1, 2 and 4 have consistently spoken about the occurrence. 26. From the evidence of P.W.1 - Balasubramanian, it is made clear that his family had money. Younger brother of P.W.1 viz. A.4 to A.7 broke open Bureau, Iron Box, robbed Silk Saree, Jewels, Watches, Gold Rings and cash worth about Rs.29,000/-. P.Ws.1, 2 and 4 have consistently spoken about the occurrence. 26. From the evidence of P.W.1 - Balasubramanian, it is made clear that his family had money. Younger brother of P.W.1 viz. Ganesan, employed in Military had sent cash of Rs.15,000/-. Further, by selling trees, they have raised Rs.20,000/-. The money was kept in the house to search a job for the younger brother of P.W.1. The fact that the family kept money, jewels and other articles in the house is well spoken by P.W.1 and his mother - P.W.3. In fact about one week prior to the occurrence, A.3 went to the house of P.W.1 and enquired P.W.3. A.3 learnt about the money kept in the house of P.W.1 by enquiring P.W.3. This is clear from the evidence of P.W.3. 27. Evidence of P.W.1 - Balasubramanian and P.W.2 - Kesavan is to be tested for its reliability and substantive corroboration. There is a variation in the overt act attributed to A.1 and A.2 in the Charge and the evidence. For appreciation of this point, we may refer to their overt act which is as under:- The above variation in the overt act attributed to A.1 and A.2 is not a material contradiction. Since dacoity is the conjoint act, one Accused is responsible for the overt act of another. The Accused cannot try to take advantage of the contradiction in the overt act attributed to A.1 and A.2 in the charge and in the evidence. Suffice it to point out that the prosecution has clearly brought out the commission of dacoity. 28. Commission of dacoity in the house of P.W.1 - Balasubramanian is well brought out by the unimpeachable evidence of objective findings during investigation. The followings are the telltale circumstances, noted during inspection of the scene of occurrence:- In Ex.P.2 - Observation Mahazar, the same is noted as ... That apart, human blood was detected in M.O.22 - blood stained paddy. These objective findings during investigation are the evidence of strong character strengthening the evidence of P.Ws.1, 2 and 4 as to the commission of dacoity in the house. 29. The Commission of dacoity and the occurrence are assailed contending that breaking of Door is not mentioned in Ex.P.2 - Observation Mahazar. These objective findings during investigation are the evidence of strong character strengthening the evidence of P.Ws.1, 2 and 4 as to the commission of dacoity in the house. 29. The Commission of dacoity and the occurrence are assailed contending that breaking of Door is not mentioned in Ex.P.2 - Observation Mahazar. It is also assailed that broken iron boxes were not produced before the Court. Of course, in Ex.P.2 - observation Mahazar, breaking of Door is not referred. When Ex.P.2 refers to all the material aspects, non-mention of breaking of Door would not in any way affect the other features, which are of strong character noted during the investigation. Likewise, non-seizure of the iron boxes - Bureau would not undermine the prosecution case. 30. Identification of Accused. In cases of dacoity, question of identification is a primary matter for consideration. In the commission of dacoity in the house of Rajavelu, whether Appellants / Accused 1 to 7 are proved to be the dacoities ? is the main point arising for consideration. Identification of Accused 1 to 7 by P.Ws.1 and 2 in the Court is corroborated by their identification of the accused 1 to 7 in the earlier Identification Parade. A.1 and A.3 arrested on : 31.08.1999 A.2, A.4 to A.7 arrested on : 02.09.1999 Test Identification Parade in Madurai Central Jail was conducted on : 09.09.1999 In the Identification Parade, P.Ws.1 and 2 have correctly identified the Accused, which strengthens their evidence on identification of the Accused in the Court. 31. Reliability of identification of A.1 to A.7 by P.Ws.1 and 2 is to be judged on the facts and circumstances to consider whether conviction could be based on the same. At the time of occurrence - 11.00 p.m., there was sufficient light inside the house. In his evidence, P.W.1 - Balasubramanian has also stated ehd; vGe;jpUe;J oa{g; iyl;il nghl;nld;/ In Ex.P.34 - Rough Plan also, one bulb in the front side and two tube lights inside the houses are shown to be burning. It is also stated in Ex.P.2 - Observation Mahazar that tPl;od; cs;ns ,uz;L oa{g; iyl;Lfs; vhpe;J bfhz;oUe;jd/ Thus, there was sufficient light to enable P.Ws.1 and 2 to see the Accused in the scene of occurrence. 32. The occurrence persisted for some time. After inflicting stab injuries on deceased Rajavelu, A.1 and A.2 dragged Rajavelu outside the house and again brought him inside. 32. The occurrence persisted for some time. After inflicting stab injuries on deceased Rajavelu, A.1 and A.2 dragged Rajavelu outside the house and again brought him inside. Thus P.Ws.1 and 2 had sufficient opportunity to note the features of A.1 and A.2. A.3 brandishing knife, stood by P.W.4 - Subban. A.4 and A.5 tied P.W.1 and gagged his mouth with cloth. Likewise, A.6 and A.7 tied P.W.2 and gagged his mouth with cloth. After so tying P.Ws.1 and 2, A.4 to A.7 were on search of articles, which must have persisted for some time. Thus, P.Ws.1 and 2 had ample opportunity to identify the Accused. The identity of the Accused by P.Ws.1 and 2 is substantive evidence strengthening the prosecution case. 33. In the identification of the Accused by P.Ws.1 and 2 is attacked on the ground that in the earlier statement recorded by the Police under Sec.161(3) Crl.P.C., P.Ws.1 and 2 have not stated about the physical features of the Accused and hence, their identification of the Accused is not wholly reliable to base the conviction. This contention does not merit acceptance. In Ex.P.1 - Complaint, P.W.1 has referred to certain features like age, clothing, etc. as ... The above features of the dacoities sufficiently point to the impression created in the minds of P.Ws.1 and 2. Rajavelu being dead and with a disturbed mental condition, P.Ws.1 and 2 were able to state only the above features. The Appellants / Accused 1 to 7 are not right in assailing the identification of the Accused by P.Ws.1 and 2 on the ground that they have not referred any other physical features of the dacoities in Ex.P.1 - Complaint. 34. Test Identification Parade held on 09.09.1999 and its Evidentiary Value. The substantive evidence regarding identification of the Accused by P.Ws.1 and 2 is strengthened by their identification of the Accused in the Identification Parade held on 09.09.1999. After the arrest of the Accused i.e. on 31.08.1999 (A.1 and A.3) and 02.09.1999 (A.2 and A.4 to A.7), Identification Parade was held on 09.09.1999 without any delay. P.W.11 - Judicial Magistrate has spoken about the precautionary measures adopted by her prior to the Identification Parade. Thirty persons of similar age and features of the Accused were chosen. After the arrest of the Accused i.e. on 31.08.1999 (A.1 and A.3) and 02.09.1999 (A.2 and A.4 to A.7), Identification Parade was held on 09.09.1999 without any delay. P.W.11 - Judicial Magistrate has spoken about the precautionary measures adopted by her prior to the Identification Parade. Thirty persons of similar age and features of the Accused were chosen. In the First Round, Appellants / A.1 to A.7 were asked to stand in the midst of other persons and P.Ws.1 and 2 have correctly identified all the Accused. At the second time, the Accused were made to stand in the row at their option. At that time, P.W.2 - Kesavan was not able to identify A.4 - Raman. Rest of the Accused were identified by P.W.1 and P.W.2. That the Accused were allowed to select their own position in the line clearly shows that the Identification Parade was held in all fairness to the Accused. There is no reason to doubt the evidence of P.W.11 - Judicial Magistrates, who has adopted all precautionary measures. 35. The Test Identification Parade held on 09.09.1999 and its evidentiary value are attacked by the Appellants / A.1 to A.7 on the following grounds:- (i) That there was delay in holding the Identification Parade. Reliance placed upon A.I.R. 1987 SC 1222. (ii) Only P.Ws.1 and 2 have participated in the Identification Parade and no Identification Parade was held for identification of the Accused by P.W.4 - Subban and no reason forthcoming for such lapse. (iii)that the Accused were taken to custody by the Usilampatti Police even on 25.08.1999; Photographs were taken and the same was shown to the witnesses - P.Ws.1 and 2. Before Identification Parade, P.Ws.1 and 2 were with the Police and identification of P.Ws.1 and 2 in the Test Identification Parade is not reliable. 36. The above contentions urged by the Appellants / A.1 to A.7 do not merit acceptance. The purpose of Identification Parade is to have corroboration in the form of earlier identification. In this case, immediately after the arrest of the Accused - 31.08.1999 (A.1 and A.3), 02.09.1999 (A.2, A.4 to A.7), Identification Parade was held on 09.09.1999. Immediately after the arrest, Accused were sent to judicial custody. There was no possibility of the Accused being shown to the witnesses or taking of photographs. 37. In this case, immediately after the arrest of the Accused - 31.08.1999 (A.1 and A.3), 02.09.1999 (A.2, A.4 to A.7), Identification Parade was held on 09.09.1999. Immediately after the arrest, Accused were sent to judicial custody. There was no possibility of the Accused being shown to the witnesses or taking of photographs. 37. The main contention of the Accused is that on 25.08.1999, totally 11 persons were arrested and few persons were let off by the Police and regarding these Accused, photographs were taken between 25.08.1999 and prior to the remand and those photographs were shown to P.Ws.1 and 2 to enable them to identify the Accused and that a false case is foisted against them. Evidence of P.W.21 - I.O. and other evidence, viz. P.Ws.18 - Pandi and P.W.19 - Karuppan as to the arrest of the Accused, confession and recovery is consistent. The contention of the Accused that they were arrested even on 25.08.1999 is unsupported by any other material. That apart, when the Accused 1 to 7 were remanded to judicial custody and when questioned about any grievance against the Police, the Accused had not complained of the same - that they were taken to custody even on 25.08.1999 and were illegally detained. While so, it is futile to contend that they were arrested much earlier i.e. on 25.08.1999. 38. P.W.11 is the Judicial Officer. Holding of the Test Identification Parade on 09.09.1999 is a judicial act. As per Illustration (e) of Section 114 of Indian Evidence Act, presumption is to be raised that all official and Judicial acts were properly done. Thus, sanctity is attached to the judicial act of Identification Parade. But this judicial act of holding Identification Parade is assailed by suggesting milahs which of course is clearly denied by P.W.1. It is nothing but unfair to suggest that P.W.11 - Judicial Magistrate has allowed intervention of the Police in the Test Identification Parade. From the evidence of P.W.11, we find that there is no element of unfairness in holding of the Test Identification Parade. 39. Holding of the Test Identification Parade is very much attacked on the ground that there was no identification of Accused by P.W.4 - Subban. In the Identification Parade held on 09.09.1999, only P.W.1 - Balasubramanian and P.W.2 - Kesavan have participated and identified A.1 to A.7. P.W.4 - Subban was not produced for identification of the Accused. 39. Holding of the Test Identification Parade is very much attacked on the ground that there was no identification of Accused by P.W.4 - Subban. In the Identification Parade held on 09.09.1999, only P.W.1 - Balasubramanian and P.W.2 - Kesavan have participated and identified A.1 to A.7. P.W.4 - Subban was not produced for identification of the Accused. The reason being obvious. At the time of occurrence, P.W.4 was sleeping in his house and at about 11.00 p.m., he was tied by some of the dacoities and thereafter, A.3 held him with knife in his hand. P.W.4 was nowhere inside the vicinity of the occurrence. In fact, in his evidence, P.W.4 - Subban has identified only A.3 and has not identified other Accused. When P.W.4 was tied and held in his house, no useful purpose would have been served by producing him in the Identification Parade for identifying the dacoities. This contention raised by the Accused lacks in substance. 40. After the Identification Parade, P.W.11 - Judicial Magistrate asked the Accused ... She has not asked the Accused whether they have anything to say about the Identification Parade. It might have been an omission on the part of the Judicial Officer to put such questions to the Accused. But such omission does not vitiate the Identification Parade held by P.W.11 - Judicial Magistrate after adopting all precautions. It is to be noted that any prejudice being caused to the Accused was not brought out during trial. 41. The learned counsel for Appellants / A.1 to 6 relied upon the decision reported in A.I.R. 1970 SUPREME COURT 1321 - Budhsen v. State of U.P. The above decision relates to the well settled proposition of identification of the Accused and the evidentiary value of the identification in the Identification Parade. Contending that there is enormous delay in holding the Identification Parade, the learned counsel for Appellants / A.1 to 6 relied upon the decision reported in A.I.R. 1987 SC 1222 - Subash v. State of U.P. In the said case, Identification Parade was held four months after the arrest of the Accused one Shiv Shankar. In that factual situation, the Supreme Court has doubted the complicity of the Accused Shiv Shankar and also his identification in the Identification Parade. In that factual situation, the Supreme Court has doubted the complicity of the Accused Shiv Shankar and also his identification in the Identification Parade. That decision has no bearing to the case in hand, since in the instant case immediately after the arrest of the Accused on 31.08.1999 and 02.09.1999, Identification Parade was held on 09.09.1999 itself and absolutely, there was no delay. 42. Non-mention of name of A.3 in Ex.P.1. A.3 - Manikandan was well-known to the family of P.W.1 - Balasubramanian. Before P.W.4 - Subban, one Velusamy was employed by the family of P.W.1 for doing the field work. The said Velusamy was living with his family in the field. A.3 - Mani @ Manikandan is none other than the son of the said Velusamy. P.W.1 and others had good acquaintance with A.3. In her evidence, P.W.3 (Santha) - mother of P.W.1 has stated that A.3 is well-known to the family... While so, in Ex.P.1 - Complaint, the assailants / Dacoities are stated to be unidentifiable persons. Neither name of A.3 nor his identification is mentioned. P.W.1 gave Ex.P.1 - Complaint on 14.08.1999 - 5.00 a.m.; P.W.2 attested the same. P.W.4 accompanied them to the Police Station. But Ex.P.1 proceeds on the premise that dacoities were unidentifiable persons. 43. Likewise, before P.W.12 - Dr.Pounraj, the assailants were stated as unknown persons as " Alleged to have been assaulted by unknown persons at about 11.00 p.m. on 13.08.1999 at his house with 44. Case of prosecution is thus seriously assailed on the ground of non-mention of name of A.3 in Ex.P.1 - Complaint by P.W.1. This contention is to be considered in the light of mental anxiety and tension in the minds of P.Ws.1 and 2. P.Ws.1 and 2 made all efforts to save their father Rajavelu, but could not save him. Their father being dead, P.Ws.1 and 2 were mentally disturbed. In that situation, P.W.1 might not have mentioned the name of A.3 in Ex.P.1 - Complaint. That apart, it is to be noted that A.3 - Manikandan was in the house of P.W.4 - Subban holding P.W.4 and standing by his side with knife. P.W.4 though accompanied P.Ws.1 and 2, may or may not have informed the same to P.Ws.1 and 2. Further, the entire occurrence was in the midnight. P.Ws.1 and 2 were tied and they were gagged with clothes. P.W.4 though accompanied P.Ws.1 and 2, may or may not have informed the same to P.Ws.1 and 2. Further, the entire occurrence was in the midnight. P.Ws.1 and 2 were tied and they were gagged with clothes. After the bitter and sad experience, P.Ws.1 and 2 went to lodge the Complaint. Obviously, they must have been under great mental stress and strain. In that circumstance, omission to mention the name of A.3 in Ex.P.1 - Complaint would not in any way undermine the veracity and reliability of Ex.P.1. 45. Arrest, Confession Statement and Recovery of Material Objects. A.1 and A.3 were arrested on 31.08.1999 by P.W.21 - I.O. in the presence of P.W.9 - Palpandi and P.W.18 - Pandi. P.W.9 turned hostile. However, P.W.18 had clearly spoken about the arrest of A.1 and A.3 and recovery of M.O.30 - Knife from Rakkammapatti Cashew nut field. At the instance of A.1 - Jothi, M.Os.1 to 6 were seized. Evidence of P.W.18 amply corroborates the evidence of P.W.21 - I.O. on the arrest of A.1 and A.3, confession and recovery of articles. Consistent evidence of P.W.18 - Pandi and P.W.21 - I.O. cannot be doubted on the hostility of P.W.9, more so, when the evidence of P.Ws.18 and 21 are strengthened by the contemporaneous mahazar and recovery of objects. 46. A.2 and A.4 to A.7 were arrested on 02.09.1999 in the presence of P.W.19 - Karuppan. P.W.19 had clearly spoken about the arrest and recovery. Though P.W.19 has not specifically spoken about the recovery of individual items, evidence of P.W.19 substantially brings out the recovery apart from corroborating the version of P.W.21 - I.O. on the arrest of A.2 and A.4 to A.7 and recovery. 47. Evidence of P.W.21 - I.O. as to the recovery is cogent and convincing. The recovery of the material objects at the instance of the individual Accused could be tabulated as under:- 48. P.W.1 - Balasubramanian has identified all the gold ornaments and the material objects excepting the cash. Almost all the articles recovered were the robbed items. In a case of dacoity, recoveries of the stolen articles from some of the accused persons have considerable importance because in appropriate cases if there be not much of time lag, the persons from whom such articles have been recovered can be convicted for commission of dacoity. Almost all the articles recovered were the robbed items. In a case of dacoity, recoveries of the stolen articles from some of the accused persons have considerable importance because in appropriate cases if there be not much of time lag, the persons from whom such articles have been recovered can be convicted for commission of dacoity. Thus, where the accused were found in possession of gold ornaments and other articles soon after the occurrence, and they have no satisfactory explanation for such possession, the presumption could be raised that the accused committed Dacoity and robbery of ornaments. Because of proximity of the recovery from the date of occurrence, the presumption under Sec.114 Indian Evidence Act, Illustration (a) to be raised that the Accused had committed the dacoity. By recovery of various articles at the instance of each one of the Accused, the participation of the Accused 1 to 7 in the commission of dacoity is well proved. 49. The case of prosecution is assailed contending that the gold ornaments were not stated to be stolen articles in Ex.P.1 - Complaint and in Ex.P.35 - Inquest Report. In Ex.P.1 - Complaint, P.W.1 - Balasubramanian has only stated about the missing of (i) Jewels, (ii) Watches and (iii) Cassettes. Missing of gold ornaments is not mentioned in Ex.P.1. Likewise, missing of gold ornaments is not stated in Ex.P.35 - Inquest Report also. Immediately after the occurrence, P.Ws.1, 2 and 4 had taken the injured Rajavelu to Usilampatti Hospital. On the way to Madurai Hospital near Achampathu Village, Rajavelu died and they brought back Rajavelu to the hospital at Usilampatti. From Usilampatti Hospital, P.Ws.1 and 2 straightly went to Usilampatti Police Station to lodge the complaint. At that time, they had no opportunity to verify about the missing of the articles. Only fragment of the missing articles are mentioned in Ex.P.1. That does not in any way affect the reliability of Ex.P.1 - Complaint. 50. Ex.P.1 - Complaint was lodged before Usilampatti Police Station on 14.08.1999 - 5.00 a.m. Ex.P.33 - First Information Report in Crime No.615 of 1999 was registered by P.W.20 - S.I. of Police immediately thereon. Ex.P.33 - First Information Report was entrusted to P.W.16 - Grade I Police Constable for being handed over to Judicial Magistrate, Usilampatti. 50. Ex.P.1 - Complaint was lodged before Usilampatti Police Station on 14.08.1999 - 5.00 a.m. Ex.P.33 - First Information Report in Crime No.615 of 1999 was registered by P.W.20 - S.I. of Police immediately thereon. Ex.P.33 - First Information Report was entrusted to P.W.16 - Grade I Police Constable for being handed over to Judicial Magistrate, Usilampatti. But P.W.16 had handed over Ex.P.33 before the Judicial Magistrate, Uthamapalayam only on the next day i.e., on 15.08.1999 - 10.00 a.m. This delay is also pointed out by the Accused contending that the delay is not properly explained. In his evidence, P.W.16 has clearly explained the delay. Having gone to Usilampatti, P.W.16 found that the Judicial Magistrate was on leave. Thereafter, P.W.16 went to Andippatti and also Periyakulam and had known that those Magistrates were also on leave. It was, thereafter, P.W.16 had travelled to Uthamapalayam to hand over Ex.P.33 - First Information Report. Sufficient margin time is to be given to P.W.16 for waiting and travelling to four places atleast. The delay is properly explained by P.W.16. 51. Deceased Rajavelu sustained ... Cut Injuries : Over the lower lateral aspect of left lower arm, exposing muscle, tendon, vessels and bone. Over lateral side of right palm over the root of little fingers exposing muscle, tendon, vessels and bone. Fracture over lower aspect of matacarpal bone. Stab Injury : A stab injury over right iliac area away from umbilicus. Loops of intestine distended about 15 cms. of intestines pulled from injury No.3, size 7 x 3 x 7 cm. On exposing injury No.1 lower ends of ulna muscle and vessels were exposed. Rajavelu died due to injuries No.1, 2 and 3. A.1 and A.2 caused fatal stab injuries on the abdomen and on the right palm and left palm. It is thus fully established that the dacoity is committed by a party of seven persons and A.1 and A.2 caused murder of Rajavelu. Thus dacoity and murder are shown to be part of one and the same transaction. Accused 1 to 7 are rightly convicted under Sec.396 I.P.C. 52. Murder and dacoity are proved to be one part of the same transaction by establishing the following:- (i) Identification of A.1 to A.7 by P.Ws.1 and 2; (ii) Unexplained possession of stolen property - presumption raised under Illustration (a) of Sec.114 of Indian Evidence Act. 53. Accused 1 to 7 are rightly convicted under Sec.396 I.P.C. 52. Murder and dacoity are proved to be one part of the same transaction by establishing the following:- (i) Identification of A.1 to A.7 by P.Ws.1 and 2; (ii) Unexplained possession of stolen property - presumption raised under Illustration (a) of Sec.114 of Indian Evidence Act. 53. By cogent and convincing evidence, the prosecution has established the offence of dacoity with murder. The learned Sessions Judge (Fast Track Court No.I, Madurai) has well analysed the evidence. The reasonings for conviction are well balanced and are inconformity with the evidence. The conviction of Accused 1 to 7 are to be sustained. 54. For the conviction under Sec.396 I.P.C., Accused 1 to 7 are sentenced to undergo Rigorous Imprisonment of ten years each. A dacoit is actuated by the contemptible motive of appropriating property lawfully belonging to another. The crime itself is difficult to trace, and only a small proportion of the criminals taking part are arrested; even then it is often difficult to secure the conviction of more than a fraction of them. For these reasons in the realm of punishment it cannot be viewed lightly. Accordingly, unless there is satisfactory proof of the existence of mitigating circumstances, the sentence on dacoits should invariably be heavy and deterrent. In this case, the dacoity is a pre-planned one between A.1 to A.7. They have chosen the odd hours of midnight and brutally attacked Rajavelu, who tried to prevent them. Considering the manner of occurrence and the nature of injuries caused to Rajavel, there is no reason for reducing the sentence of imprisonment imposed on A.1 to A.7. These appeals have no merits and are bound to fail. 55. Crl.A.Nos.1025 and 1470 of 2002:- Therefore, the Judgment of the Trial Court / Fast Track Court No.I, Madurai in S.C.No.415 of 2001 (dated 07.05.2002) convicting Appellants / A.1 to A.7 under Sec.396 I.P.C. and the sentence of imprisonment and fine imposed are confirmed and both the appeals are dismissed.