JUDGMENT: Accused 1 to 4 in S.C.No.15 of 1994 on the file of the Sessions Court, Ooty are the appellants. By the Judgment dated 30.1.1997, the appellants/accused were convicted by the trial Court for various offence’s imposing sentence of imprisonment. 2. An the trial Court, along with appellants/accused, one Mahendran (figuring as A-1) stood trial. He died after framing of the charges. Another accused - A-6, Kuttappai absconded. Hence these appellants were arraigned as A-1 to A-4. 3. The occurrence of dacoity which led to the prosecution of the appellants could be stated thus: Attikunna Estate and the house thereon with door no.1/151-B belongs to P.W.2, Pascal Rodriques. P.W.1, Vikraman is employed under P.W.2 as his cook. At the time of occurrence, the wife of P.W.2 had been away. On the date of occurrence, - 2.11.1990 - 7.45 p.m., P.W.1 and P.W.2 were watching television inside the house. At that time, A-1 to A-4 and the said Mahendran and Kuttappai, gained entry into the house from the rear side. A-4 held P.W.2; while A-2 held P.W.I at knife point. A-4 attempted to attack P.W.2 and P.W.2 pushed him down. At that time, A-4 inflicted stab injuries on the right eye brow, right side head and abdomen resulting in protruding of the intestines. After sustaining injuries, P.W.2 had fallen. Mahendran committed robbery of video cassettes (M.O.5). A-1 removed the candle stand (M.O.6). A-2 has removed M.O.1 SBBL Gun and A-3 had taken away the cash of Rs.5,500. At that time, P.W.3 came in a tractor. On seeing the tractor coming, the dacoits ran away from the house. At that time A-3 pushed down P.W.1. 4. The tractor driver P.W.3 - Yusuf had taken P.W. 1 to Mango Range hospital for first aid. In Mango Range Hospital, P.W.4 had given first aid to P.W.2. He had noted the incised wound on the abdomen, left finger wrist, right eye brow, right side head. Later P.W.2 was taken to Culvetta Fathima Hospital where he was admitted on the small hours on 3.11.1990 - 1 a.m. P.W.6 Dr.Sebastian has noted the above incised wounds on the person of P.W.2 and issued Ex.P-13 wound certificate. Stab injury on the abdominal cavity right hypochonodrial area was found to be grievous in nature. 5.Registration of case and investigation: On 3.11.1990 -10 am, P.W.1 went to Devala Police Station and lodged Ex.P-1 complaint. Stab injury on the abdominal cavity right hypochonodrial area was found to be grievous in nature. 5.Registration of case and investigation: On 3.11.1990 -10 am, P.W.1 went to Devala Police Station and lodged Ex.P-1 complaint. On receipt of Ex.P-1, P.W.10, Inspector of Police had registered the case in Crime No.228 of 1990 -under Sec.397, I.P.C. P.W.10 had taken up the investigation. He has inspected the scene of occurrence - Athikunna Estate. Ex.P-2 - Observation Mahazar and Ex.P-24 Rough Plan were prepared on the scene of occurrence. Incriminating articles M.Os.2, 7 and 8 were seized from inside the house under Ex.P-3 -Seizure Mahazar. From outside also, other material objects were seized. Witnesses were examined by P.W.10. 6. P.W.9 Finger print expert inspected the scene of crime. From various objects inside the house, he has lifted chance prints including R-5 from the bed room Steel Bureau. 7. The accused were arrested on various dates in the presence of P.W.5. Stolen articles were seized from them. After the arrest of A-3, it came to be known that his finger print tallied with R-5. 8.Identification parade: Pursuant to the requisition from the Inspector of Police, P.W.7 -Judicial Magistrate held Identification parade regarding A-2 and A-4 on 25.1.1991 in Gudalur Sub Jail. In the identification parade, P.Ws.1 and 2 identified A-2 and A-4. P.W.7 also held test identification parade regarding A-3 on 4.4.1994. A-3 was identified by P.Ws. 1 and 2. Mahendran and A-1 surrendered before the Court on 13.7.1991. All of them were taken to police custody. Their confession statement led to the recovery of M.0.5 and M.0.6. Regarding Mahendran and A-1, P.W.8-Judicial Magistrate held test identification parade on 18.7.1991 in which P.Ws.1 and 2 have correctly identified Mahendran and A-1. 9. P.W.2 identified the seized material objects as the stolen articles. On completion of formalities of the investigation, the accused were charge sheeted for various offences. 10. To substantiate the charges against the accused in the trial Court, prosecution has examined P.W.1 to P.W.10. Ex.P-1 to Ex.P-26 were marked. M.O.1 to M.O.15 were produced before the Court. The appellants/accused were questioned under Sec.313, Crl.P.C about the incriminating evidence and circumstance. Denying all of them, the appellants/ accused stated that a false case is foisted against them. 10. To substantiate the charges against the accused in the trial Court, prosecution has examined P.W.1 to P.W.10. Ex.P-1 to Ex.P-26 were marked. M.O.1 to M.O.15 were produced before the Court. The appellants/accused were questioned under Sec.313, Crl.P.C about the incriminating evidence and circumstance. Denying all of them, the appellants/ accused stated that a false case is foisted against them. Specifically denying the arrest in the manner alleged by P.W.10, the accused had stated that they were taken to police custody on earlier dates and were also shown to the witnesses and that a false case is foisted against them. 11. Upon consideration of the evidence, the trial Court accepted the prosecution case, finding that the involvement of the appellants/ accused is well proved by the evidence of P.Ws.1 and 2, whose evidence is strengthened by the earlier identification of the accused in the identification parade. For recording the finding of guilt, the trial Court mainly placed reliance upon- (i) Evidence of P.W.1 and P.W.2 and that P.W.2 was injured in the occurrence; (ii) Recovery of stolen articles from the accused; (iii) Identification of the accused by P.W.1 and P.W.2 in the earlier identification parade; (iv) Tallying of the chance print with the finger prints of A-3. On the above findings, the trial Court found the appellants/accused guilty for various offences and convicted them as noted below: Charge Against Whom Gist and Charge Finding Conviction/Sentence 1. A-1 to A-5 under Sec.450, I.P.C.-House trespass in order to commit robbery Found guilty under Sec.450, I.P.C. Rigorous Imprisonment for two years on each of A-1 to A-5 2. A-3 under Sec.341, I.P.C.-wrongfully restraining Pascal Redruques Found guilty under Sec.341, I.P.C. Rigorous Imprisonment for one year 3. A-4 and A-5 under Sec.341, I.P.C. read with 34, I.P.C. Found guilty under Sec.341 read with 34, I.P.C. Rigorous Imprisonment for one year 4. A-1 to A-4 under Sec.395, I.P.C.-Committing robbery in the house of witness P.W.2 Pascal Roudriques Found guilty under Sec.395, I.P.C. Rigorous Imprisonment for three years on each of A-1 to A-4 5. A-3 and A-4 under Sec.395 read with 397, I.P.C.-Causing grievous hurt to P.W.2 Pascal Redruqies to commit robbery Found guilty under Sec.395 read with 397, I.P.C. Rigorous imprisonment for seven years on each of A-1 to A-4 12. A-3 and A-4 under Sec.395 read with 397, I.P.C.-Causing grievous hurt to P.W.2 Pascal Redruqies to commit robbery Found guilty under Sec.395 read with 397, I.P.C. Rigorous imprisonment for seven years on each of A-1 to A-4 12. The main point of attack on the conviction is delay in holding the test identification parade and that the identification of the accused by P.W.1 and P.W.2 is not reliable. Taking me through the evidence, the learned counsel for the accused inter alia raised the following contentions: (i) Evidence of P.Ws.1 and 2 suffers from serious infirmity on the identification of the dacoits for want of evidence on the light aspect; non mention of any features of the miscreants in Ex.P-1 complaint to accept the version of P.Ws. 1 and 2; (ii) Inordinate delay in holding the test identification parade; (iii) Plea of the appellant as to how they happened to be in the police custody even prior to the alleged date of of arrest was not properly appreciated by the trial Court. The impugned judgment is also assailed on the ground that the conviction imposed upon the four assailants is unsustainable since the essential ingredients of Sec.395, I.P.C. is not made out. 13. Drawing the attention of the Court to Ex.P-1, the learned Government Advocate (Criminal Side) Mr.A.N.Thambidurai repelled the arguments of the accused contending that the basic general features of the assailants is mentioned in Ex.P-1. Taking me through the evidence of P.W.2, the learned Government Advocate has submitted that P.W.2 being victim of dacoity, whose evidence is strengthened by the medical evidence, the trial Court has rightly based the conviction on the basis of evidence of P.Ws. 1 and 2. The learned Government Advocate laid much emphasis upon the recovery of the stolen articles from the appellants/accused and submitted that in the absence of any explanation by the appellants explaining the possession of looted articles, the trial Court had rightly convicted the appellants and that there is no reason warranting interference. 14. Upon careful consideration of the submission of both sides, the Judgment of the trial Court, the evidence and other materials on record, the following points arise for determination in this appeal: (i) Whether the identification of the accused and recovery of stolen articles are satisfactorily proved by the prosecution? 14. Upon careful consideration of the submission of both sides, the Judgment of the trial Court, the evidence and other materials on record, the following points arise for determination in this appeal: (i) Whether the identification of the accused and recovery of stolen articles are satisfactorily proved by the prosecution? (ii) Whether the appellants are right in contending that the delay in holding the test identification parade undermines the reliability of their identification by P.Ws.1 and 2? and; (iii) Whether evidence and proved circumstances establish the guilt of the appellant and whether the conviction is to be interfered with? 15. To prove the dacoity in Athikunna Estate, the prosecution relies on the following direct and circumstantial evidence: (i) Direct evidence of P.W.2, who is the injured victim of dacoity and the evidence of P.W.1; (ii) Recovery of stolen articles from the accused; (iii) Identification parade held on various dates and identification of the accused by P.Ws. 1 and 2 strengthening their version, in the Court. 16. On the night of 2.11.1990-7.45 p.m., P.Ws.1 and 2 were inside the house watching the T.V. Wife of P.W.2 had been away. At that time, the dacoits, who were later identified as the appellants and deceased Mahendran and absconding accused Kuttappai, had gained entry into Athikunna Estate and also inside the house from the rear side entry. P.Ws.1 and 2 have recalled the occurrence on the fateful night. The accused have been going through the house searching for jewels, cash and other valuables. A-4 and Kuttappai held P.W.2; while A-3 held P.W.I at knife point. A-4 attempted to attack P.W.2 and P.W.2 pushed him down. At that time, A-4 inflicted injuries to P.W.2 on the right eye brow, right side head and abdomen, resulting in protruding of the intestines. The dacoits committed robbery of SBBL Gun, video cassettes, candle stand. They have also removed watches and cash of Rs.5,500, which P.W.2 kept for disbursing salary to his servants. In Ex.P-1 complaint, P.W.1 described the features of dacoits by their age and clothing. Recalling of the occurrence and the identification of the accused by P.Ws.1 and 2 is cogent and spontaneous. In the light of the contentions advanced, evidence of P.W.1 and P.W.7 is to be tested for its corroboration, on the commission of the dacoity and the identification of the appellants/accused as dacoits. 17. Recalling of the occurrence and the identification of the accused by P.Ws.1 and 2 is cogent and spontaneous. In the light of the contentions advanced, evidence of P.W.1 and P.W.7 is to be tested for its corroboration, on the commission of the dacoity and the identification of the appellants/accused as dacoits. 17. During the occurrence, A-4 inflicted injuries on P.W.2 - right eye brow, right side head and abdomen and the intestines protruded. While P.W.10 inspected the house, the house was found to be ransacked and blood was splattered. That the whole house was looted and that the blood was found to be splattered and other objective findings noticed during investigation well strengthens the evidence of P.W.2. We may usefully refer to relevant objective findings as noted in Ex.P-2 Observation Mahazar: The above objective findings during investigation are tell tale circumstance, lending assurance to the prosecution case. 18. That P.W.2 sustained injuries during the occurrence is further corroborated by the medical evidence. Prosecution has thus well proved the commission of dacoity in the house of P.W.2 and that miscreants have voluntarily caused injuries to P.W.2 when he offered resistance. 19. In cases of dacoity, the identification of the accused is of main consideration. In the witness box, P.Ws.1 and 2 have identified the appellants/ accused dacoits. P.Ws.1 and 2 have identified A-3 Johnson as armed with knife holding P.W. 1 at knife point. A-4 Jose is identified as armed with knife, holding P.W.2 and inflicting stab injuries. P.Ws.1 and 2 have also identified A-1 and A-2 as participants in the dacoity. Mahendran, employee under P.W.2, who covered his face is also said to be one of the dacoits. According to P.W.2, he identified Mahendran by his voice. The main question for consideration is whether identification of A-1 to A-4 by P.Ws.1 and 2 is reliable and acceptable and whether the trial Court is right in basing the conviction on their testimony? 20. Let us recapitulate the version of P.Ws. 1 and 2 on the occurrence. In their evidence and in Ex.P-1 it is made clear that the dacoits have been searching the whole house for quite some time. That the whole house was ransacked confirms that the dacoits have been in search for jewels, cash and other valuables. During their search, the occurrence must have persisted for some time. 1 and 2 on the occurrence. In their evidence and in Ex.P-1 it is made clear that the dacoits have been searching the whole house for quite some time. That the whole house was ransacked confirms that the dacoits have been in search for jewels, cash and other valuables. During their search, the occurrence must have persisted for some time. It must quite reasonably be found that the dacoits/accused were inside the house for quite some time. Inside the house, lights must have been burning and there was sufficient illumination for identification of the accused. In fact, the accused themselves must have put on the light to search for the articles and quite probably, they would not have made the search in darkness. While so, it is not open to the appellants/accused to urge the point that there was paucity of light to note the features of the dacoits. 21. Evidence of P.Ws.1 and 2 is seriously attacked on the ground that they would not have identified the assailants ably since in his evidence P.W.1 had stated Much stress is laid upon this statement of P.W.1, that P.Ws.1 and 2 would not have properly identified the assailants in tractor light. The above statement of P.W.1 cannot be read in isolation; but has to be read along with his earlier version of narrating the entire occurrence inside the house. His statement that he saw them running in the tractor light could only be a mode of description for the sake of completion. The same cannot militate against the veracity of P.Ws. 1 and 2 and their identification of the accused. 22. Identification of accused by P.Ws.1 and 2 is mainly attacked on the grounds of: (i) non-mention of any identifiable features of the dacoits in Ex.P-1; (ii) non-mention of name of Mahendran in Ex.P-1. This contention has no merits. By careful reading of Ex.P-1, it is seen that the general impression of identifiable features are stated, as is clear from the following: The above statement sufficiently refers to the identifiable features of the dacoits. There is no force in the contention that no identifiable features are mentioned in Ex.P-1. Likewise, non mention of the name of Mahendran in Ex.P-1 is due the fact that P.W.2 sustained grievous injury - protruding of the intestines. He might not have been in a position to name Mahendran. There is no force in the contention that no identifiable features are mentioned in Ex.P-1. Likewise, non mention of the name of Mahendran in Ex.P-1 is due the fact that P.W.2 sustained grievous injury - protruding of the intestines. He might not have been in a position to name Mahendran. Employee Vikraman - P.W.1 could not have identified Mahendran since Mahendran has covered his face and P.W. 1 could not have identified him by his voice either, since P.W. 1 is said to be deaf. Quite naturally, P.W.1 would not have mentioned the name of Mahendran in Ex.P-1. Non mention of name of Mahendran in Ex.P-1 would not in anyway affect the prosecution case. 23. Identification of the accused is further assailed on the ground that there is no mention of general identifiable features, even in their earlier statement - under Sec.161(3), Crl.P.C. By and large, victims of dacoity cannot be expected to recall all the identifiable features. The witnesses would not have anticipated the occurrence. Such an occurrence often is an element of surprise. Therefore, the mental faculties cannot be expected to be attuned to observe all the minute details. The general features of clothing, age and the language they have spoken are sufficient identifiable features. It would be unrealistic to expect the witnesses to give a photographic version of the dacoits. This contention urged on the non-mention of minute details of identifiable features in their earlier statement was raised before the trial Court which has rightly rejected the same. 24. Identification of the accused by P.Ws. 1 and 2 is attacked on the ground of delay in holding the test identification parade. The main contention urged is that in view of the delay in holding the test identification parade, the identity of the appellants/accused by P.Ws.1 and 2 is fallible and that it would be unsafe to base conviction on such identification. 25. 1 and 2 is attacked on the ground of delay in holding the test identification parade. The main contention urged is that in view of the delay in holding the test identification parade, the identity of the appellants/accused by P.Ws.1 and 2 is fallible and that it would be unsafe to base conviction on such identification. 25. For better appreciation of the above contentious points urged on behalf of the appellants, we may usefully refer to the relevant factual aspects - date of arrest of the accused, recovery of incriminating articles and date of holding identification test parade as noted below: Accused and date of arrest Seizure of material object Date of holding identification parade A-2/20.12.1990 M.0.4-HMT Watch from his person M.O.1-SBBL Gun from the well near his house 25.01.1991 A-4/20.12.1990 M.O.3-Citizen Watch from his person 25.1.1991 A-3/25.1.1991-4.4.1991 A-1 and Mahendran surrendered before Court on 13.7.1991 A-1 and Mahendran taken to police custody M.O.6 Candle Stand from A-1 from his house M.O.6 Video Cassettes from Mahendran 18.7.1991 26. P.W.5, Jose - a Panchayat member is the witness for the arrest of A-2 and A-4; Later A-3, and witness for the examination of Mahendran and the 1st accused during police custody. Evidence of P.W.5 clearly brings out the arrest of the accused on various dates and confession statement recorded from them, leading to the recovery of incriminating articles. His evidence specifically corroborates the version of the Investigating Officer, P.W. 10. Evidence of P.W.5 is assailed on the ground of improbabilities that he could not have been the witness for the arrest of all the accused, including examination of A-1 and Mahendran, when they were taken to police custody. This contention does not impress this Court. As stated earlier, P.W.5 is a Panchayat member. All the accused are said to be residents of Nellipalam - 19th ward. When P.W.5 is a respectable person, being a Panchayat Member, quite naturally, P.W.10 - Investigating Officer would have called him to be the witness for the arrest of the accused, though stretched over for various dates. That P.W.5 being the witness for the arrest of all the accused and seizure, has not weakened the effect on the seizure of stolen articles from the accused. 27. Recovery of stolen articles from the accused and identification of the same by P.W.2 is a strong piece of evidence militating against the accused. That P.W.5 being the witness for the arrest of all the accused and seizure, has not weakened the effect on the seizure of stolen articles from the accused. 27. Recovery of stolen articles from the accused and identification of the same by P.W.2 is a strong piece of evidence militating against the accused. Even in Ex.P-1 - complaint, committing robbery of M.O.I SBBL Gun is clearly stated. When barrel of gun was stolen and recovered at the instance of A-2, in the absence of any explanation presumption under Sec.114, Indian Evidence Act illustration (a) is to be raised. Even though the gun was recovered quite after some time, possession of stolen articles by the accused, though not recent in the circumstance of the case, presumption is to be raised. As noted in paragraph No.25 stolen articles were seized either from the person or from their house, which clearly shows conscious possession of the stolen articles by the accused. The accused have not offered any explanation for such conscious possession of looted articles and the presumption raised under Sec. 114, Indian Evidence Act - illustration (a) remains unrebutted. 28. The main contention urged on behalf of the appellants/accused is the delay in holding the test identification parade. It is the contention of the accused that in view of such delay in holding the identification parade, the identification of the accused in the Court by P.Ws. 1 and 2 becomes unreliable. It is to be pointed that substantive evidence of the witnesses is a statement before the Court identifying the accused. Evidence of identification parade and the identification thereon can be used only to corroborate that substantive evidence in the Court. 29. Identification parade belongs to investigation stage. Test Identification could be conducted only after the arrest of the accused. During investigation, there was delay in tracing the accused. After the accused were arrested there was no unreasonable delay in holding the identification parade. So far as A-1 and Mahendran are concerned, test identification parade was held nearly eight months after the occurrence. But even there, it is not a case of unexplained delay; but the delay in holding the identification parade was due to the delay in their surrender to the Court and taking police custody. So far as A-1 and Mahendran are concerned, test identification parade was held nearly eight months after the occurrence. But even there, it is not a case of unexplained delay; but the delay in holding the identification parade was due to the delay in their surrender to the Court and taking police custody. It is not a proposition of law that after a lapse of long period, the witnesses would in any case would not be able to identify the dacoits; only thing is that the Courts must be cautious in respect of such evidence. As discussed earlier, there was sufficient opportunity and sufficient light for P.Ws. 1 and 2 to identify the dacoits and form their impression on their minds. Therefore, they were able to identify the accused in the test identification parade, though it was held quite some time after the occurrence. If the contention of delay in holding the test identification parade is to be accepted as undermining the prosecution case, dacoits after committing the offence might go underground avoiding arrest and thereafter, urge the point that there was delay in holding the test identification parade. If such a contention is to be accepted many dacoits would go unpunished. 30. Placing reliance upon 1992 Crl.L.J. 1236, in the trial Court the delay in holding the test identification parade was raised. The learned Sessions Judge has rightly distinguished that decision on factual situation pointing out that the occurrence on the night of 2.11.1990 persisted for some time and P.Ws. 1 and 2 had ample opportunity of observing the definite images of the accused. That approach of the trial Court does not suffer from any erroneous approach to take a different view. 31. Yet another piece of evidence confirming the complicity of A-3 in the commission of dacoity is to be pointed out. R-5 is chance print lifted from the Steel Bureau in the Bed Room of the house. After the arrest of A-3, his finger print was taken and when the same was compared by P.W.9, finger print expert, it tallied with the chance print lifted from the Bureau. Evidence of P.W.9 and his detailed report Ex.P-23 are yet another strong piece of evidence on the complicity of A-3 in the occurrence and strengthening the prosecution case. 32. After the arrest of A-3, his finger print was taken and when the same was compared by P.W.9, finger print expert, it tallied with the chance print lifted from the Bureau. Evidence of P.W.9 and his detailed report Ex.P-23 are yet another strong piece of evidence on the complicity of A-3 in the occurrence and strengthening the prosecution case. 32. During the questioning under Sec.313, Crl.P.C. all the accused have stated that they were taken to Devala police station and detained for a number of days in the police station and during such detention, they were also shown to the witnesses P.Ws.1 and 2 to enable them to identify them. This defence taken by the accused is not acceptable. On this aspect, P.W.10 has clearly denied the suggestion put to him. There is no material to substantiate the above defence plea. It is not open to the accused to raise the ground that the witnesses had opportunity of seeing them, which vitiates the identification parade. 33. By ample evidence and circumstance, prosecution has proved: (i) That the accused after entering into the Attikunna Estate committed dacoity on the night of 2.11.1990; (ii) Identification of the accused in the Court, strengthened by the earlier identification in the text identification parade; (iii) Recovery of stolen articles from the accused and absence of any explanation for their possession. In the light of the proved facts and evidence, essential ingredients of Sec.397, I.P.C. is well proved. That A-1 caused injuries to P.W.2 and A-3 held P.W.I at the knife point is also established by the evidence of P.Ws.1 and 2. A-3 and A-4 were rightly convicted for the offence under Sec.397, I.P.C. read with 395, I.P.C. Finding of guilt and the conviction are well in conformity with the evidence and materials on record and the same is to be confirmed. No substantial points are made out to reverse the verdict of conviction and this appeal is bound to fail. 34. Therefore the Judgment of the Sessions Court Ooty in S.C.No.15 of 1994 (dated 30.4.1997) is confirmed and the conviction of the appellants/accused 1 to 4 for various offences and sentence of imprisonment imposed on them are confirmed and this appeal is dismissed. 35. The trial Court is directed to secure the custody of the appellants/accused and make them serve the remaining part of the sentence.