Judgment Amar Dutt, J. 1. Through the present appeal, Suresh, Jai Singh, Malkhan Singh, Janki, Vijay, Naresh Pal, Netra Pal, Hari Ram and Lakhan Singh seek to challenge the conviction and sentence recorded against them by the Additional Sessions Judge, Gurgaon on 1-2.4.1987 under Section 395 read with S. 397 IPC. 2. Briefly stated, the prosecution case, as brought out in the testimony of the prosecution witnesses, is that Jiya Ram son of Siri Ram used to reside in village Janola while his brother Kanwar Sain was residing in his house situated at tubewell adjacent to village abadi. On the night intervening 28/29.11.1984 Siri Ram was sleeping in the verandah of his while his grand son Vinay Kumar was sleeping in another Baithak. The wife of Jiya Ram and other members of the family were sleeping inside the house. At about 12.10 A.M. on that night, four bandits came in the house and overpowered Siri Ram and demanded the key of the safe from him. He denied that he had any such key in his possession. These bandits had given him beatings and caused injuries to him on the head and left shoulder. When Siri Ram raised an alarm, the dacoits broke open the door of the main house and entered therein. They also broke open the door of the inner room. On hearing the commotion, the women folk, sleeping inside, came out in the Court-yard and at that time a shot was fired, outside the house, while another shot was fired from the roof of that house. These four bandits entered inside the main house and also dragged Siri Ram alongwith them and again started beating him. Thereafter, the dacoits started snatching ornaments from the persons of women folk and breaking open the locks of the boxes. On hearing the alarm of Siri Ram, Vinay Kumar, his grand son was awakened. The dacoits broke open the boxes lying in the house and looted valuables. A pellet injury was also received by Siri Ram at his left shoulder. 3. Vinay Kumar, on hearing the alarm, came out of his room he saw four dacoits in electric light grappling with his grand father and as soon as he rushed towards his grand father, one of those dacoits fired a shot at him. A pellet hit on his left thigh. 3. Vinay Kumar, on hearing the alarm, came out of his room he saw four dacoits in electric light grappling with his grand father and as soon as he rushed towards his grand father, one of those dacoits fired a shot at him. A pellet hit on his left thigh. On hearing alarm, one Prem also reached there and one of the dacoits also fired a shot at him and after receiving the shot injury, Prem ran away. Vinay Kumar retreated back and came outside the house after opening the window of his Baithak and shouted for help. As none from the village came, he went to summon Kanwar Sain, his uncle, who was living in the farm and when both of them were returning from the farm, they noticed four dacoits in the light of the torch and one of them was young in age having stout body and tall in height and he was armed with a gun. After entering the house, they also came to know that Jiya Ram, his wife Santosh Devi, Vinod and his wife Ramrati were also given beatings by the dacoits and that they also received injuries. 4. Kanwar Sain, then left his house for Police Station Pataudi for lodging a report and when he reached Pataudi Chowki, Pataudi near Octroi Post, Ganeshi Lal S.I/SHO of Police Station Pataudi met him while on patrol duty and he recorded the statement of Kanwar Sain at 1.15 A.M. and sent a wireless. Message to SHO of Police Station Farrukhnagar and on its basis the formal FIR was recorded at 2.15 A.M. Sub Inspector Ganeshi Lal alongwith the police party went to the spot. In the meanwhile, S.I. Hira Singh the then SHO of Police Station Farrukhnagar on receipt of wireless message from S.I. Ganeshi Lal reached village Janola and after guarding the scene of occurrence, he started search of the culprits. He also took into possession four moulds, one torch and one empty cartridge of 12 bore from the place of occurrence. 5. During the investigation of the case, the appellant Suresh was arrested on 25.3.1985 by S.I. Ram Phal and produced before the Magistrate with muffled face but on 1.4.1985 when he was required to join the Test Identification Parade, he vide his statement Ex. PFF/2 refused to do so. During the police remand on 8.4.1985, he made a disclosure statement Ex. During the investigation of the case, the appellant Suresh was arrested on 25.3.1985 by S.I. Ram Phal and produced before the Magistrate with muffled face but on 1.4.1985 when he was required to join the Test Identification Parade, he vide his statement Ex. PFF/2 refused to do so. During the police remand on 8.4.1985, he made a disclosure statement Ex. PS in pursuance whereof he had led the police party to his house situated in village Janola and got recovered a pair of Pajeb belonging to Ramratti vide recovery memo Ex. PS/1, which was identified by her during the investigation. 6. Jai Singh appellant was arrested on 23.3.1985 by S.I. Ravinder Kumar and produced before the Magistrate with a muffled face in order to facilitate Test Identification Parade. On 1.4.1985 he made a statement before the Executive Magistrate refusing to participate in the Test Identification Parade. Thereafter, during the police remand, on 8.4.1985 he made a disclosure statement Ex. PT, pursuant whereto he had led the police party to his house in Adhyapak Nagar, Nangloi and got recovered one pair of ear rings, pendul and one pair of Pajeb belonging to Munni Devi which were during investigation identified by Munni Devi as belonging to her. These ornaments were taken into possession through recovery memo Ex. PT/1. 7. Malkhan Singh appellant was arrested on 7.5.1985 and produced before the Magistrate with a muffled face as Investigating Agency wanted to hold a Test Identification Parade. On 10.5.1985 before the Executive Magistrate, he refused to participate in the Test Identification Parade, where upon his statement Ex. P2 was recorded. During his police remand, on 14.5.1985 he made a disclosure statement Ex. PUU before S.I. Har Gobind, whereafter in pursuance whereof he led the police party to his house at Indra Nagar, Aligarh and got recovered one pendul and one ring of gold belonging to Santosh, which were taken into possession through Memo Ex. PVV and identified by her during the investigation. 8. Janki appellant was arrested on 25.3.1985 by S.I. Ram Phal and produced before the Magistrate with a muffled face as he would be required for holding Test Identification Parade on 1.4.1985. On that day before Shri V.D. Gaur, Tehsildar he refused to participate in the Test Identification Parade, whereafter police remand was obtained. On 8.4.1985, he made a disclosure statement Ex. On that day before Shri V.D. Gaur, Tehsildar he refused to participate in the Test Identification Parade, whereafter police remand was obtained. On 8.4.1985, he made a disclosure statement Ex. PU, in pursuance whereof he had led the police party to his house situated in Dabwa Colony, Faridabad and got recovered one pair of ear ring of gold and one pair of Pajeb of silver, which were taken into possession vide recovery memo Ex. PU/1. These ornaments were identified by Bimla as the same were belonging to her. 9. Vijay appellant was arrested on 25.3.1985 by S.I. Ram Phal and produced before the Magistrate in a muffled face as the Investigating Agency wanted to hold a Test Identification Parade. On 1.4.1985 Vijay refused to join the identification parade and was thereafter remanded to police custody. On 8.4.1985 while in police custody he made a disclosure statement Ex. PV, pursuant whereto he had led the police party to his house and got recovered one Teeka of gold belonging to Ramratti, which was taken into possession through recovery memo Ex. PW/l. This Teeka was identified by Ramratti during the investigation. 10. Similarly, Naresh Pal appellant was arrested on 12.4.1985 by HC Prem Narain and was produced before the Magistrate with a muffled face for facilitating holding of a test identification parade on 15.4.1985. On that day, he refused to participate in the identification parade and thereafter he was remanded to police custody. While in police custody, on 21.4.1985 he made a disclosure statement, pursuant whereof he had led the police party to his house situated in Gautam Nagar, Delhi and got recovered a Teeka of gold belonging to Bimla, which was taken into possession vide recovery memo Ex. PA and identified by her during investigation. 11. Netra Pal appellant was arrested on 15.4.1985 by S.I. Har Gobind and was produced before the Magistrate with a muffled face. On 22.4.1985 when Test Identification Parade was to be held, he refused to participate in the same and his statement was recorded by the Executive Magistrate. Thereafter he was remanded to police custody, whereon 5.5.1985 he made a disclosure statement, pursuant whereto he got recovered one pair of Kundal and one pair of Pajeb. Which were taken into possession by the police through recovery memo. These ornaments were later on identified by Santosh as the same were belonging to her. 12. Thereafter he was remanded to police custody, whereon 5.5.1985 he made a disclosure statement, pursuant whereto he got recovered one pair of Kundal and one pair of Pajeb. Which were taken into possession by the police through recovery memo. These ornaments were later on identified by Santosh as the same were belonging to her. 12. Hari Ram appellant was arrested on 7.4.1985 by HC Dharam Pal and produced before the Illaqa Magistrate with a muffled face as he was required to participate in Test Identification Parade but on 22.4.1935 before the Executive Magistrate he refused to participate in Test Identification Parade and his statement was recorded. He was thereafter remanded to police custody in which on 28.4.1985 he made a disclosure statement before S.I. Har Gobind, pursuant whereto he led the police party to his house situated at Dabwa Colony, Faridabad and got recovered one pendul of gold which was taken into possession vide recovery memo Ex. PTT. This was later on identified by Ramratti as belonging to her. 13. Appellant Lakhan Singh was in judicial custody in FIR No. 31 of 1985 and when an application was moved for permission to hold Test Identification Parade on 11.11.1985, on that day through statement Ex PGG/1, he refused to join the same. During the police custody, he was interrogated and on 20.11.1985 he made a disclosure statement, pursuant whereto he had led the police party to the house of Rajinder Parshad situated in Delhi to whom he had pawned the stolen ornaments belonging to Ramratti vide pawn deed Ex.PAA and got recovered four bangles, one HMT watch and two pair of Pajebs, which were taken into possession through recovery memo Ex. PDD. During investigation, his thumb impression were obtained and forwarded to the Finger Print Bureau, Madhuban for comparison with the thumb impression affixed on the pawn deed and the Finger Print Expert vide his report Ex.PCC opined that the thumb impression on the pawn deed was identical to that of specimen thumb impression. 14. On completion of the investigation, challan was put in Court against the accused. 15. On seeing the challan, the Illaqa Magistrate committed the same to the Court of Session, which framed the charge against the appellants under Sections 395 and 397 IPC to which they pleaded not guilty. 16. In order to bring home the charge, the prosecution examined Dr. G.S. Sheikhawat PW 1, Dr. 15. On seeing the challan, the Illaqa Magistrate committed the same to the Court of Session, which framed the charge against the appellants under Sections 395 and 397 IPC to which they pleaded not guilty. 16. In order to bring home the charge, the prosecution examined Dr. G.S. Sheikhawat PW 1, Dr. Sudhir Singh Yadav PW 2, Siri Kishan Gupta, Draftsman PW3, Kanwar Sain PW 4, Siri Ram PW 5, Vinay Kumar PW 6; Shri R.S. Bahmani, Judicial Magistrate 1st Class, Palwal PW7 : Ram Singh PW8; Shri Wazir Singh Gupta Tehsildar PW9; Rohtash Singh PW 10 : Sukh Pal Singh PW 11 : Dhoop Singh, Finger Print Expert PW 12 : Rajinder Parashad PW 13; Chandgi Ram ASI PW 14; Dharam Pal PW 15; Shri V.D. Gaur, Tehsildar PW 16; SI Gian Chand PW 17; HC Raj Kumar PW 18; S.I. Hira Singh PW 19; ASI Inder Singh PW 20; Dharamvir MHC PW21; Shri Khalil Ahmad, Tehsildar PW 22; HC Prem Narain PW 23; S.I. Daya Nand PW24; Inspector Ganeshi Lal PW 25; Har Chand retired S.I. PW 26 and S.I. Ravinder Kumar PW 27. 17. When the explanation of the appellants was sought under Section 313 Cr. PC regarding the incriminating appearing against them in the prosecution evidence they denied all the allegations and asserted that they have been falsely implicated. They stated that they were already shown to the witnesses in CIA Staff, Gurgaon, Police Station Sadar Gurgaon; District Jail, Gurgaon and while on the way from Jail to Courts and they, therefore, pleaded that they refused to take part in test identification parades on that ground. According to Lakhan Singh appellant, he was brought from Aligarh Jail, on 6.11.1985 and was shown to witnesses at Aligarh Jail, Aligarh Courts Rohtak Jail, CIA Staff, Gurgaon etc. 18. Hari Ram appellant stated that he was arrested in this case on 19.2.1985 from Faridabad when he was appearing in a case bearing FIR No. 98 under Sections 323 and 324 IPC in the Court of Shri P.L. Goel, Additional Chief Judicial -Magistrate, Gurgaon and that he was shown to the witnesses. 19. Jai Singh appellant stated that his brother was brought from his residence at Adhyapak Nagar, Delhi on 15.3.1985 regarding which his mother also made complaints to various authorities. According to Jai Singh, he surrendered in the Court on 21.3.1985 and moved an application for test identification parade. 19. Jai Singh appellant stated that his brother was brought from his residence at Adhyapak Nagar, Delhi on 15.3.1985 regarding which his mother also made complaints to various authorities. According to Jai Singh, he surrendered in the Court on 21.3.1985 and moved an application for test identification parade. He further deposed that when he was being brought from the District Jail, Gurgaon towards the Courts on 23.3.1985 inspite of his application to the contrary some policemen accompanied by civilian who were witnesses of this case forcibly removed the cloth, with which his face was muffled and although he resisted but he sustained injuries and on his application he was also medically examined from General Hospital, Gurgaon as per orders of the Court. According to him, he was forcibly shown to the witnesses on 23.3.1985. Similar defence version was put up by Malkhan Singh appellant. 20. According to Suresh appellant he was permanent resident of village Janola which is a small village and according to him, he could have easily been identified and named in the FIR has he taken part in the dacoity. He, therefore, stated that he was falsely roped in this case because of party faction in the village and at the instance of the complainant party. 21. In their defence, Hari Ram appellant tendered in evidence documents Exs. DX, DY and DZ while Jai Singh and Malkhan Singh appellant produced Narsing Bir, Assistant Superintendent, District Jail, Gurgaon as DW 1, Rame alias Ram Kumar, a convict as DW 2, Ramwati their mother as DW 3 and Yagdutt Sharma complaint clerk, office of the Deputy Commissioner, Gurgaon as DW4 in support of their defence version that Malkhan Singh was brought by the Gurgaon Police from Adhyapak Nagar, Delhi on 15.3.1985 and that Jai Singh was forcibly shown to the witnesses while he was being brought from District Jail, Gurgaon to Courts on 23.3.1985. 22. Thereafter, the trial Court after hearing arguments convicted the appellants and sentenced them to undergo RI for eight years each and to pay a fine of Rs. 200/- each under Section 395 IPC and in default of payment of fine to undergo further RI for one year. Hence, the present appeal. 23. No one has put in appearance on behalf of the appellants and therefore, I have scanned through the evidence with the assistance of the State counsel. 24. 200/- each under Section 395 IPC and in default of payment of fine to undergo further RI for one year. Hence, the present appeal. 23. No one has put in appearance on behalf of the appellants and therefore, I have scanned through the evidence with the assistance of the State counsel. 24. Appellants Suresh, Jai Singh, Malkhan Singh, Janki Vijay, Naresh Pal, Netra Pal, Hari Ram and Lakhan Singh were alleged to have participated in an armed dacoity on the night intervening 28/29.11.1984 in village Janola. The Investigating Agency had after the arrest of the appellants sought to hold a Test Identification Parade of each one of them. The evidence on record shows that instead of taking their chance in the Test Identification Parade, all the appellants had when required to join the parade opted out of the same on one pretext or the other. The evidence gave rise to a negative presumption against them. This presumption may not by itself have been sufficient to bring home the charge but the appellants seems to have put into a common pool the fruits of the dacoity committed by them before equally dividing the spoils amongst each one of them. To this sharing of booty, the Investigating Agency should give the credit of solving the crime. During interrogation, each one of the appellants had blurted out the details of share of the profits that the hit carried out by them on the night intervenving 28/29.11.1984 in village Janola had brought out to him. After recovery of the valuables that have been taken away by the appellants during the incident, the Investigating Agency held a Test Identification Parade of the ornaments which had been recovered from each of the appellants. It is this exercise which was carried out by the police officials that has helped the prosecution to bring on record the evidence regarding the booty that had fallen to the share to each one of the appellants and thereby bring on record the circumstantial evidence to prove their involvement in the incident. In the face of this evidence, which was available before the Trial Court the verdict had inevitably to be given against the appellants. In the face of this evidence, which was available before the Trial Court the verdict had inevitably to be given against the appellants. Even careful scrutiny for any loophole has not be able to bring out anything in favour of the appellants and after taking into consideration all the aspects of the case, I am of the view that the appeal filed by Suresh, Jai Singh, Malkhan Singh, Janki, Vijay, Naresh Pal, Netra Pal, Hari Ram and Lakhan Singh cannot succeed. 25. For the reasons recorded above, the appeal fails and is consequently dismissed.